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2020 DIGILAW 4 (ALL)

Mohd. Baqar Agha v. State Of U. P.

2020-01-02

PANKAJ MITHAL, VIPIN CHANDRA DIXIT

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JUDGMENT : 1. Heard Sri Siddharth Singhal, learned counsel for the petitioner, learned Standing Counsel for the respondents and Sri B.K. Ojha, learned counsel appearing for Allahabad (Now Prayagraj) Development Authority. 2. The parties have exchanged pleadings and agree for the final disposal of the writ petition at the admission stage itself. 3. The petitioner has preferred this petition for the quashing of the order dated 07.12.2013 passed by the District Magistrate, Allahabad (Now Prayagraj) and the revenue entry in respect of plot No. 1075 on the ground that as the urban ceiling proceedings in respect of the said land were never finalized, the name of the State could not have been entered in the revenue records and the petitioner cannot be dispossessed from the said land after the repeal of the Urban Land (Ceiling and Regulation) Act, 1976. 4. There is no dispute to the fact that about 1123 square meters of land of the petitioner of Araji No. 1075 situate in Bamrauli Uparhar, District Allahabad was declared to be surplus vide order dated 08.03.1996 passed by the competent authority under the aforesaid Act. The said order became final and conclusive as it was not challenged by the petitioner in any higher forum. 5. The petitioner continued to be in possession of the said land as the proceedings for taking possession of it were never completed. 6. In the meantime, the Urban Land (Ceiling and Regulation) Repeal Act, 1999 was enforced w.e.f. 18.03.1999. 7. In the above circumstances, the petitioner filed Writ Petition No. 49298 of 2006 alleging that as he continues to be in actual possession of the land declared to be surplus, its possession cannot be taken over by the respondents. The said writ petition was disposed off vide order dated 07.09.2006 with the observation that as the Act has been repealed, no further proceedings can be taken if the petitioner continues to be in actual possession of the excess land or the land which has been declared to be surplus. At the same time, District Magistrate was directed to decide the representation of the petitioner by a speaking order and till its decision parties were directed to maintain status-quo over the said land. 8. At the same time, District Magistrate was directed to decide the representation of the petitioner by a speaking order and till its decision parties were directed to maintain status-quo over the said land. 8. It is in pursuance of the above order that the District Magistrate has passed order dated 07.12.2013 refusing to delete the name of the State from the revenue records and to restore that of the petitioner alleging that the aforesaid land was declared to be surplus which order has acquired finality. 9. The District Magistrate in passing the above order has not mentioned or referred to the fact of possession of the said land. The order is completely silent if pursuant to the declaration of the land to be surplus the possession was taken over by the State or not. 10. In the writ petition, petitioner has categorically stated in paragraph 6 that he is still in possession, his constructions exist over the said land and he is using electricity and telephone in the said premises. The bills thereof clearly establish that he is in possession. 11. In paragraph 30 of the writ petition, it has been stated that after the land was declared to be surplus, no proceedings for taking its possession were drawn and that at least no notice under Section 10 (5) of the Act was served upon him to surrender or deliver the possession of the surplus land. The respondents have not taken possession of the land so declared to be surplus. 12. In the counter affidavit filed by the Allahabad Development Authority, no possession memo has been brought on record. It has not been stated that the possession of the land was surrendered by the petitioner voluntarily or that it was taken over under Section 10 (6) of the Act. 13. In counter affidavit of the State, in paragraph 3, it has been alleged that pursuant to the declaration of the land to be surplus, notices under Section 10 (1) and 10 (3) of the Act were published in the Gazettes but there is no averment that any proceedings under Section 10 (5) or 10 (6) of the Act were initiated meaning thereby that the respondents never actually took possession of the land in question. 14. 14. In reply to the paragraph 30 of the writ petition, the only thing stated is in paragraph 9 of the counter affidavit and that is to the effect that as per the direction of this Court, the representation of the petitioner has been rightly decided by the District Magistrate and since it was found to be baseless, it has been rejected. Again, the averments made regarding possession of the petitioner over the land in dispute have been left uncontroverted. 15. The respondents have not brought any memo of possession on record which may have been executed under Section 10 (6) of the Act. 16. In view of the above, as pursuant to the declaration of the land to be surplus, the possession of it was never taken over by the State, the said land has not come under the ownership of the State so as to permit the respondents to record it in the name of the State. 17. It is admitted legal position that once possession of the land declared to be surplus under the Act has not been taken and in the meantime the Act has been repealed, the respondents cannot initiate any proceedings under the said Act for its possession. 18. The petitioner despite land being declared to be surplus, in the absence of the possession continues to be in its possession and to be the owner. 19. Accordingly, he is entitle for getting his name restored in the revenue records if on the basis of declaration of the land to be surplus, his name has been deleted. 20. In view of the aforesaid facts and circumstances, the impugned order dated 07.12.2013 passed by the District Magistrate, Allahabad is hereby quashed and it is directed that the name of the petitioner be restored in the revenue records. 21. The writ petition is, accordingly, allowed with no order as to costs.