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2019 DIGILAW 246 (UTT)

Ankush Pandey v. State of Uttarakhand

2019-03-27

SHARAD KUMAR SHARMA

body2019
JUDGMENT : 1. The issue in the present Writ Petition, as argued for a couple of days by the counsel for the petitioner, pertains to an act of taking over of possession of land by the respondents in 1989, in pursuance to the land being declared as surplus in proceedings held under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the Act of 1976”), prior to the repealment of the Act of 1999. 2. In order to arrive to a logical conclusion and to meet the arguments, as extended by the learned counsel for the petitioner are from the following view points. These were the major points sought to be pressed by the petitioner’s counsel during the course of the arguments :- (1) That there is no proof on record to show that there was a compliance of Sub-section (5) and (6) of Section 10 of the Act of 1976 for taking over the possession of the land after the same being declared as surplus. (2) That there was non-compliance of the directions called as Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983, as issued by the State Government of U.P. while exercising its powers under Section 35 of the Act of 1976. 3. In brief, the case, at hand, emanates from the following facts: The controversy pertains to the declaration of land as surplus in relation to the property bearing No. 132, situated at Rajeev Gandhi Marg (E.C. Road) Old No. 31/2/1 E.C. Road, Dehradun, over which, the property, in question, which was having an area of 1802 sq.ft. i.e., equivalent to 167.47 sq.mtrs. in total. The property, in question, initially had been recorded in the revenue records as Khasra Nos. 898 and 897/3, lying in Mahal Man Singh Wala, Uddiwala Karanpur, Dehradun, having a total area of 6 bighas and 3-1/2 biswas of land. It is not in dispute that the principal predecessor owner of the property, in question, who was initially recorded was Smt. Shakuntala Kumari, who, admittedly had sold the property to one Smt. Shanti Chaurasia as back as on 28th March, 1957 by virtue of a registered sale deed. Consequent to the aforesaid sale, Smt. Shanti Chaurasia is shown to have been recorded in the revenue records of the Nagar Nigam as to be the owner of the property. 4. Consequent to the aforesaid sale, Smt. Shanti Chaurasia is shown to have been recorded in the revenue records of the Nagar Nigam as to be the owner of the property. 4. The case of the petitioner is that Smt. Shanti Chaurasia, by virtue of the sale deed dated 6th December, 1969 had sold part of the land, purchased by her by the sale deed dated 28th March, 1957 in favour of one Dr. Sarla Chaurasia. With the initiation of the proceedings under the Act of 1976 for declaring land as surplus, Smt. Shanti Chaurasai is said to have filed an application on 12th August, 1976, invoking provisions contained under Section 20 of the Act of 1976, by representing to the Secretary of the Local Self Government, seeking an exemption from the land being declared as surplus to the extent of 181.8 sq.mtrs., alleging thereof that since it happens to be the common passage, it ought to be excluded from the ceiling proceedings. In order to seek an exemption, she has filed Form-1 as contemplated under Sub-section (1) of Section 6 of the Act of 1976. 5. However, the Urban Ceiling Case as registered against Smt. Shanti Chaurasia, being Case No. 157 of 1977 and by an order under Sub-section (4) of Section 8 of the Act of 1976, as rendered on12th December, 1977, the Ceiling Authorities have declared a total area of 619.72 sq.mtrs. of land as surplus with Smt. Shanti Chaurasia and, consequent to the declaration of land as surplus, direction was simultaneously issued to take over possession of the same in compliance of the provisions contained under Section 9 of the Act of 1976. After passing of the order dated 12th December, 1977, a statement was prepared by the competent authority with regard to the land thus declared surplus on 28th January, 1978, which was put to challenge by Smt. Shanti Chaurasia by preferring an Appeal No. 25 of 1978, Shanti Chaurasia Vs. State and others before the District Judge. Initially, there was an interim order granted by the Appellate Court, but, later on the Ceiling Appeal No. 25 of 1978, Shanti Chaurasia Vs. State and others before the District Judge. Initially, there was an interim order granted by the Appellate Court, but, later on the Ceiling Appeal No. 25 of 1978, Shanti Chaurasia Vs. State and others stood adjudicated by the judgment dated 19th May, 1978 and the same was allowed and no land was declared surplus and the matter travelled upto the Apex Court at the behest of State against the judgment 19.05.1978, after dismissal of the Writ Petition of the State. 6. The Apex Court remanded the matter for re-consideration of the area of land, which was to be declared as surplus in the proceedings of urban ceiling as held against the predecessors of the petitioner. On the remand by the Hon’ble Apex Court, it was renumbered as Appeal No. 1 of 1985, Smt. Shanti Chaurasia Vs. State of U.P. and others and was adjudicated by the Appellate Authority vide its judgment dated 18thApril, 1987. The Appellate Authority, in its judgment, as rendered on 18th April, 1987, had ultimately declared that out of the total land thus declared as surplus by the judgment dated 12th December, 1977, it was modified to some extent and ultimately, the land which was declared as surplus, partly allowed the Appeal and while modifying the order passed by the competent authority, held that out of the total land of appellant, possession of only 336 sq.mts. of land was declared as an excess and the same was accordingly declared as surplus. 7. The order of the Appellate Authority dated 18th April, 1987, was not put to challenge in a Writ Petition before the Allahabad High Court, hence, the judgment dated 18.04.1987 but the same was dismissed by the High Court of Allahabad. 8. Admittedly, it is no ones case that as against the land being declared as surplus by the judgment of the Appellate Authority on 18th April, 1987, no subsequent proceedings was ever drawn by the predecessors Smt. Shanti Chaurasia, owner whose land was declared as surplus and consequently, so far the process which has culminated upto the High Court as attained its finality by the judgment dated 18.04.1987 of the Appellate Authority. 9. 9. The predecessor owners of Smt. Shanti Chaurasia of the present petitioner, after culmination of the proceedings, as held by the Appellate Authority on 18th April, 1987, partially modifying the order of the competent authority declaring the land as surplus only upto the extent of 336 sq.mtrs. of land is said to have later on bequeathed his property by virtue of the registered will in favour of his successors. The question, which would evolve at this stage, would also be as to whether the testator, by virtue of the Will dated 19th August, 1993 executed subsequent to the attachment of finality to the order dated 18th April, 1987, declaring the land as surplus, could at all bequeath the property which no more remained under her ownership after being declared as surplus as it would stand vested with the State. 10. Be that as it may. Under the strength of the bequeathing made on 19.08.1993 of the property, it is the case of the petitioner that the heirs of the predecessors of the present petitioner stood recorded in the Municipal records and they were assessed for year 1st April, 1984 to 31st March, 1989 and 1st April, 1989 to 31st March, 1994. Shanti Chaurasia met with the sad demise on 10th January, 1997. The petitioner claimed and have also pleaded that he is purchaser of the property, also the land thus declared as surplus by virtue of the sale deed dated 13th February, 2016 executed by the successors of late Shanti Chaurasia to whom the property was bequeathed by the Will dated 19th August, 1993. 11. Under the aforesaid backdrop, the argument as extended by the learned counsel for the petitioner is that the effect of repealment of Urban Ceiling Act as made w.e.f. 1999 would be that since the possession of the property as declared surplus by the Appellate Authority was not taken over, as such, they would be entitled to derive the benefit of the law as propounded by the Hon’ble Apex Court in the judgment reported in (2013) 4 SCC 280 , State of Uttar Pradesh Vs. Hari Ram. In particular, the argument of the learned counsel for the petitioner is from the view point of the finding which has been recorded in para 38 of the said judgment which reads as under :- “38. Hari Ram. In particular, the argument of the learned counsel for the petitioner is from the view point of the finding which has been recorded in para 38 of the said judgment which reads as under :- “38. The above reasoning is in consistence with the 1983 Directions which have been issued by the State Government in exercise of the powers conferred under Section 35 of the Act. The Directions clearly indicate the procedure for taking possession of the vacant land in excess of the prescribed ceiling limit, which reads as under: The Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 (Directions issued by the State Government under Section 35 of the 1976 Act): “In exercise of the powers under Section 35 of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), the Governor is pleased to issue the following directions relating to the powers and duties of the competent authority in respect of amount referred to in Section 11 of the aforesaid Act to the person or persons entitled thereto: 1. Short title, application and commencement.-These Directions may be called the Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 (2) The provisions contained in this direction shall be subjected to the provisions of any directions or rules or orders issued by the Central Government with such directions or rules or orders. (3) They shall come into force with effect from the date of publication in the gazette. 2. Definitions.- *** 3. Procedure for taking possession of vacant land in excess of ceiling limit.-(1) The competent authority will maintain a register in Form No. ULC-I for each case regarding which notification under sub-section (3) of Section 10 of the Act is published in the gazette. 4. 2. Definitions.- *** 3. Procedure for taking possession of vacant land in excess of ceiling limit.-(1) The competent authority will maintain a register in Form No. ULC-I for each case regarding which notification under sub-section (3) of Section 10 of the Act is published in the gazette. 4. (1)* * * (2) An order in Form No. ULC-II will be sent to each landholder as prescribed under sub-section (5) of Section 109 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No. ULC-I. (3) On possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) Of Section 10 of the Act, entries will be made in a register in Form No. ULC-III and also in Column 9 of Form No. ULC-I. The competent authority shall in token of verification of the entries, put his signatures in Column 11 of Form No.ULC-I and Column 10 of Form No. ULC-III. Form No. ULC-I Register of notice under Sections 10(3) and 10(5) (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) Sl. Sl. No. of register of receipt Sl. No. of taking possession register of Case number Date of Notification under Section 10(3) Land to be acquired Village Mohali Date of taking over posses-sion Remarks Signature of competent authority Form No. ULC-II Notice order under Section 10(5) [See clause (2) of Direction (3)] In the court of competent authority ULC ……………… No. ……………….. Date ……………… Sri/Smt …………………………….. T/o ……………………… In exercise of the powers vested under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), you are hereby informed that vide Notification No. ………. dated ….. under Section 10(1) published in Uttar Pradesh Gazette dated …… following land has vested absolutely in the State free from all encumbrances as a consequence Notification under Section 10(3) published in Uttar Pradesh Gazette dated ……. Notification No. ……… dated .…. With effect from ………. you are hereby ordered to surrender or deliver the possession of the land to the Collector of the District authorised in this behalf under Notification No. 324/II-27-U.C.77 dated 9-2-1977, published in the gazette, dated 12-3-1977, within thirty days from the date of receipt of this order otherwise action under sub-section (6) of Section 10 of the Act will follow. you are hereby ordered to surrender or deliver the possession of the land to the Collector of the District authorised in this behalf under Notification No. 324/II-27-U.C.77 dated 9-2-1977, published in the gazette, dated 12-3-1977, within thirty days from the date of receipt of this order otherwise action under sub-section (6) of Section 10 of the Act will follow. Description of vacant land Location Khasra No. identification Area Remarks (1) (2) (3) (4) Competent Authority …………………………. …………………………. No. ………………… Dated……………………. Copy forwarded to the Collector ………… with the request that action for immediate taking over of the possession of the above detailed surplus land and its proper maintenance may, kindly be taken and an intimation be given to the undersigned along with the copy of the certificate to verify. Competent Authority ………………………. ……………………..” 12. As a matter of fact, the Hon’ble Apex Court in the said judgment at the relevant point of time, when it was dealing with the impact of the repealment of the Urban Land (Ceiling and Regulation) Act, 1976, as repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999, has held that if the possession has not been taken in accordance with the process as contemplated by the directions issued by the State under Section 35 of the Act of 1976, the land even if it has been declared as surplus would stand vested with the owner of the property whose land has been declared surplus in the proceedings under the Act and the same cannot be taken over in possession after Repealing Act of 1999. 13. 13. On the other hand, the argument which has been extended by the learned counsel for the respondents counsel and as pleaded in the counter affidavit too is to the effect that after the declaration of the land as surplus on 18.04.1987, as a matter of fact, the respondents did resorted to the process of taking over of possession in the light of the provisions contained under Section 10 of the Act and, in support of their contentions, they have drawn attention of this Court to the document annexed with the counter affidavit as Annexure-2, which was issued by the competent authority as back as on 25th September, 1989, much before the repealment of the Act, which itself speaks that it was a procedure which was followed by the authorities in compliance of Section (5) of Sub-section 10 of the Act of 1976. Rather the finding which has been recorded therein in the order dated 25.09.1989 shows compliance of provisions of Section 10 (5) of the Act is to the effect that when the process of taking over of the possession was being resorted to though the predecessors owner of the present petitioner Shati Chaurasia was present on the spot but she has declined to put the initial on the documents of handing over of the possession. Order dated 25.09.1989 reads as under :- HINDI 14. Consequently, the competent authority had handed over the possession to MDDA of the said date. The fact of compliance of Sub-section (5) of Section 10 of the Act of 1976 as argued by the learned counsel for the petitioner stood satisfied in accordance with the report given by the competent authority which was also considered and was on record in the appellate courts proceedings as decided by the Appellate Authority on 18th April, 1987. 15. Hence, the argument of the learned counsel for the petitioner that the provisions of Sub-section (5) of Section 10 of the Act of 1976, was not complied with, is not acceptable for the reasons the language of Sub-section (5) of Section 10 of the Act of 1976, if it is read in precision, which is quoted hereunder :- “10. 15. Hence, the argument of the learned counsel for the petitioner that the provisions of Sub-section (5) of Section 10 of the Act of 1976, was not complied with, is not acceptable for the reasons the language of Sub-section (5) of Section 10 of the Act of 1976, if it is read in precision, which is quoted hereunder :- “10. Acquisition of vacant land in excess of ceiling limit.-(1) As soon as may be after the service of the statement under Section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that- (i) Such vacant land is to be acquired by the State Government concerned; and (ii) The claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed. (2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit. (3) At any time after the publication of the notification under sub-section (1), the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified. (4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3)- (i) No person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and (ii) No person shall alter or cause to be altered the use of such excess vacant land. (5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice. (6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the State Government concerned or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary. Explanation.—In this section, in sub-section (1) of Section 11 and in Sections 14 and 23, ‘State Government’, in relation to - (a) Any vacant land owned by the Central Government, means the Central Government; (b) any vacant land owned by any State Government and situated in a Union Territory or within the local limits of a cantonment declared as such under Section 3 of the Cantonments Act, 1924 (2 of 1924), means that State Government.” 16. It rather contemplates only a process that when after the declaration of the land as surplus one the land stands vested with the State Government, then the owner of the property whose land has been thus declared as surplus has to be noticed for the purposes of taking over of the possession. Admittedly, in accordance with the document, Annexure CA-2, it satisfies the compliance of Sub-section (5) of Section 10 of the Act of 1976 and rather it was the process, which was resorted to by the competent authority under the said Act, prior to repealment of Act in 1999, the possession was taken over. Admittedly, in accordance with the document, Annexure CA-2, it satisfies the compliance of Sub-section (5) of Section 10 of the Act of 1976 and rather it was the process, which was resorted to by the competent authority under the said Act, prior to repealment of Act in 1999, the possession was taken over. Thus, this argument in the light of the provisions contained under Sub-section (5) of Section 10 of the Act of 1976 as extended by the learned counsel for the petitioner is not acceptable by this Court. 17. In continuation thereof, the argument of the learned counsel for the State is also that since at the stage when the proceedings under Sub-section (5) of Section 10 of the Act of 1976 was conducted and when the predecessors owner of the present petitioner declined to sign the document for handing over the possession, in that eventuality, the process of hading over of possession of the land thus declared surplus to the MDDA has completed by execution of the documents, annexure CA-1 dated 25th September, 1989, whereby, the competent revenue authority had initialled and certified the fact that the possession of the property, in question, stood transferred and handed over to the MDDA. 18. The contention of the learned counsel for the petitioner is that this process as provided of handing over of the possession in the counter affidavit could not be said to be a compliance of Sub-sections (5) and (6) of Section 10 of the Act of 1976 and decided on 18th April, 1987 and was marked as paper number 34/3, being paper No. 58 Ka/1. 19. Apart from the fact what has been already observed above, what is important to be reckoned herewith is that even this documents of handing over possession by the competent authority on 25th September, 1989, was yet again a document which was considered by the Appellate Authority under the proceedings held under the Act of 1976. 20. 19. Apart from the fact what has been already observed above, what is important to be reckoned herewith is that even this documents of handing over possession by the competent authority on 25th September, 1989, was yet again a document which was considered by the Appellate Authority under the proceedings held under the Act of 1976. 20. A distinction, which has been sought to be carved out by the learned counsel for the petitioner while responding to the aforesaid two documents which the respondents have placed reliance, pertaining to handing over of possession is that it was, in fact, not the possession which was handed over by the predecessors owner of the petitioner, whose land was declared as surplus but rather it was a document which was executed by the competent authority to hand over the possession to the MDDA, which would obviously fall to be within the process provided under Section 10 (6) of the Act. It is quite obvious because once the petitioner’s predecessors had voluntarily declined to participate in the proceeding which after its declaration stood vested with the State Government to sign the proceedings under Sub-section (5) of Section 10 of the Act, the subsequent proceedings of the handing over of the possession as held by the order dated 25th September, 1989, cannot be faulted with as it was under Section 10 (6) of the Act. 21. Another important aspect which is required to be considered by this Court while dealing with the aforesaid argument is also to the effect that the fact of handing over of the possession by the competent authority to the MDDA, as it has been pleaded in the counter affidavit, as a matter of fact, is in para 13 of the counter affidavit, filed by the respondent No. 3, the competent authority. In reply to the said pleadings, the petitioner, has not denied the fact rather contended that those facts are based on records, hence, needs no reply. This itself is sufficient to conclude the possession was taken in 1989 itself and was handed over to MDDA, which was a fact not specifically denied by the petitioner. 22. There is another aspect of the matter. This itself is sufficient to conclude the possession was taken in 1989 itself and was handed over to MDDA, which was a fact not specifically denied by the petitioner. 22. There is another aspect of the matter. The argument as extended by the learned counsel for the petitioner is by taking shelter to the judgment rendered by the Hon’ble Apex Court as reported in 2013 (4) SCC 280 (Supra), this Court is of the view that for a moment, if at all, it is presumed that the directions as framed under Section 35 of the Act of 1976 was to be complied with at the time of taking over of the possession, it was a case which was supposed to be placed and pleaded by the predecessors owner at the time or at the stage when proceedings under Sub-section (5) of Section 10 of the Act of 1976 was being carried against her or in any of the subsequent proceedings either before the Appellate Authority or before the Apex Court with regard to the purported non compliance of the direction issued by the State under Section 35 of the Act of 1976. Even the argument under the garb of the directions of 1983, as referred in para 38 of the Hon’ble Apex Court judgment in the case of State of Uttar Pradesh Vs. Hari Ram (Ssupra) was not a bone of contention either raised before any authority or even upto the Apex Court till the declaration of land as surplus had attained the finality. Rather, it has not been raised in the present writ petition too, it has been raised for the first time before this Court during the course of the argument without there being any pleadings to the said effect is the Writ Petition. This Court is of the view that until and unless the said aspect is pleaded and established, no answer to it can be expected by the State in the counter affidavit, as it involves application of fact too. 23. This Court is of the view that until and unless the said aspect is pleaded and established, no answer to it can be expected by the State in the counter affidavit, as it involves application of fact too. 23. The fact remains that so far as (1) the declaration of the land as surplus is concerned that has attained the finality by judgment dated 18.04.1987 (2) the procedure under Sub-section (5) of Section 10 of the Act of 1976 was duly followed with after prior notice to the predecessors owner is established possession order 25.09.1989 (3) admittedly, the possession was taken over by the competent authority and handing over of it to the MDDA was made even prior to the repealment of the Act of 1999 and lastly, if at all, any defence, which could be taken, it could have been by the predecessors owner of the petitioner who ought to have pleaded it upto the stage when, the proceedings were before the Apex Court. Having not done so, at this stage, when the petitioner claims his right being purchaser from the heirs of the predecessors owner, who were succeeded by virtue of the Will executed in 1993, after the land being declared as surplus in 1997 and the same being, vested with the State Government and handing over its possession to the MDDA in 1989, no right vested with the predecessors owner to bequeath the property to his heirs. Thus, non compliance of the directions as argued by the learned counsel for the petitioner is too not acceptable by this Court in the absence of any such case pleaded by them as their predecessors at any stage of the proceedings, regarding non compliance of direction under Section 35 of the Act. 24. Consequently, no writ of mandamus as prayed for could be issued for handing over of the possession of the land, which has been ultimately declared as surplus. Thus, the Writ Petition fails and is hereby accordingly dismissed.