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2023 DIGILAW 1216 (ALL)

Atma Prasad Shukla v. State of U. P.

2023-05-02

ANISH KUMAR GUPTA, SURYA PRAKASH KESARWANI

body2023
JUDGMENT : 1. Heard Sri Sushil Kumar Pal holding brief of Sri Sanjay Pandey, learned counsel for the petitioner and Sri Rajiv Gupta, learned Additional Chief Standing Counsel for the State-respondents. 2. This writ petition has been filed praying for the following relief : “a. Issue a writ, order or direction in the nature of mandamus, directing and commanding the respondents not to take actual and physical possession from the petitioner. b. Issue a writ, order or direction in the nature of mandamus, directing and commanding the respondents to release the surplus land of the petitioner from ceiling under the Repeal Act 1999 and re-registered the name of the petitioner over the revenue records as well as decide the application dated 10.10.2 022 of the petitioner.” Facts:- 3. Briefly stated facts of the present case are that the father of the petitioner namely Sri Devi Prasad Shukla owned various khasra plots of villages Singhpur, Mugdarpur and Khajuhi, Pargana Shivpur, Tehsil Sadar, District Varanasi, out of which land measuring 19349.75 square meters was declared surplus under the provisions of the Urban Land Ceiling and Regulation Act, 1976 (hereinafter referred to as ‘the Act 1976’) in Urban Ceiling Case No.600/473/652/5798/83-84 (State of U.P. vs. Devi Prasad Shukla). A notice dated 12.09.1985 under Section 8(3) of the Act, 1976 was issued which was served upon the aforesaid Devi Prasad Shukla on 13.10.1985. In paragraph-5 of the counter affidavit, it has been stated that objections were filed by the aforesaid Devi Prasad Shukla and thereafter, an order under Section 8(4) of the Act was passed on 17.11.1989 whereby 19349.75 square meters land was declared surplus. In paragraphs-6 and 7 of the counter affidavit, it has been stated that a notice under Section 9 of the Act, 1976 dated 22.02.1994 was issued. Thereafter, notification dated 22.02.1997 and 22.08.1998 were issued under Section 10(1) and Section 10(3) of the Act, 1976, which was published in the Government Gazette. A notice under Section 10(5) of the Act, 1976 was allegedly issued on 23.12.1998. In paragraphs-8 and 9 of the counter affidavit, the respondents have stated as under : “8. That further it is submitted here that with regard to the land declare surplus for recording the name of the State Government upon the same and undated parwana/order was issued. A notice under Section 10(5) of the Act, 1976 was allegedly issued on 23.12.1998. In paragraphs-8 and 9 of the counter affidavit, the respondents have stated as under : “8. That further it is submitted here that with regard to the land declare surplus for recording the name of the State Government upon the same and undated parwana/order was issued. A true Photostat copy of undated parwana/order is being annexed herewith and marked as Annexure No. CA-7 to this affidavit. Further, it is submitted here that for physical verification and identification of the land declared surplus, a letter was sent to the Secretary, Varanasi Development Authority, Varanasi on 28.03.2000 and the present matter is mentioned at serial no. 547 in the list annexed with the aforesaid letter. A true Photostat copy of letter dated 28.03.2000 are being annexed herewith and marked as Annexure No. CA-8 to this affidavit. 9. That it is also submitted here that in furtherance of the earlier order/parwana since the name of the State was not mutated in the revenue records and as such a reminder letter dated 20.09.2021 was sent to Tehsildar Sadar, Varanasi, upon the basis of which in the Khatauni of Fasli year 1427-1432, the name of the State was mutated in the revenue record. A true Photostat copy of letter dated 20.09.2021 along with Khatauni of Fasli year 1427-1432 are being collectively annexed herewith and marked as Annexure No. CA-9 to this affidavit.” 4. Since the respondents have attempted to mutate the name of the State over the aforesaid land in Fasli Year 1427-1432 vide letter dated 20.09.2021 and further attempted to dispossess the petitioner, therefore, the petitioner has filed the present writ petition. Submissions: 5. Learned counsel for the petitioner submits that no notice under Section 8(4) or Section 10(5) was ever received by the father of the petitioner. He further submits that petitioner or his father neither ever surrendered the possession of the land in question to the respondents pursuant to the alleged notice under Section 10(5) of the Act, 1976 dated 23.12.1998 nor the actual physical possession was ever taken by the respondents. He further submits that no proceeding under Section 10(6) of the Act, 1976 was initiated and the petitioner continues to be in possession of the disputed land. He further submits that no proceeding under Section 10(6) of the Act, 1976 was initiated and the petitioner continues to be in possession of the disputed land. He submits that even as per own averments of the respondents in their counter affidavit, actual and physical possession of the land in question was never taken and much after the enactment of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as ‘the Repealing Act, 1999’), the respondent wrote a letter dated 28.03.2000 for verification and identification of the land declared surplus. Thus, own averments of the respondents in paragraph-8 of the counter affidavit itself leaves no manner of doubt that the respondents never took actual physical possession of the disputed land and by Repealing Act, 1999, entire proceedings under the Act, 1976, stood abated. 6. Learned Additional Chief Standing counsel supports the action of the State-respondents. Discussion and Findings:- 7. We have carefully considered the submissions of the learned counsels for the parties and perused the record of the writ petition. 8. We find that there is no whisper in the counter affidavit that actual and physical possession of the alleged surplus declared land was ever taken by the State-respondents prior to coming into fore of the Repealing Act, 1999. On the contrary, a clear averment has been made in paragraph-8 of the counter affidavit that a letter dated 28.03.2000 was written to the Secretary, Varanasi Development Authority, Varanasi for physical verification and identification of the land declared surplus. Thus, as on 28.03.2000, the respondents have not even identified the surplus declared land. There is nothing on record to show that actual and physical possession of the surplus declared land was ever surrendered by the owner namely Devi Prasad Shukla nor there is any evidence to show that proceeding under Section 10(6) of the Act, 1976 was initiated and actual physical possession of the surplus land was taken. Thus as per own averments of the respondents in paragraph-8 of the counter affidavit, it is evident that the State-respondents have never taken physical possession of the surplus declared land in question and the petitioner continued in physical possession of the said land. Even the name of the State was not mutated prior to the Repealing Act, 1999. Thus as per own averments of the respondents in paragraph-8 of the counter affidavit, it is evident that the State-respondents have never taken physical possession of the surplus declared land in question and the petitioner continued in physical possession of the said land. Even the name of the State was not mutated prior to the Repealing Act, 1999. It is only in the year 2021, i.e. after about 22 years that the respondents attempted to get the name of the State mutated in the khatauni of Fasli Year 1427-1432. After the death of Devi Prasad Shukla, the name of his heirs, i.e. the petitioner and others were mutated in khatauni and the petitioner’s name continued in khatauni till the State’s name was attempted to be mutated in khatauni of Fasli Year 1427-1432 on 20.09.2021. The respondents have also not stated in the counter affidavit that any amount of compensation was paid to the petitioner after notification under Section 10(3) of the Act, 1976. 9. Sections 3 and 4 of the Repealing Act, 1999 provides as under : “3. Saving. – (1) the repeal of the principal Act shall not affect- (a) the vesting of any vacant land under sub-section (3) of section 10, 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; (b) the validity of any order granting exemption under sub-section (1)of section 20 or any action taken therunder, notwithstanding any judgment of any Court to the contrary; (c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of section 20. (2) Where- (a) any land is deemed to have vested in the State Government under sub-section (3) of section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and (b) any amount has been paid by the State Government with respect to such land, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government. 4. 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 other authority shall abate: Provided that this section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act insofar as such proceedings are relatable to the 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.” 10. Since neither the respondents have taken actual physical possession of the surplus declared land nor have paid any compensation in terms of Section 10(3) read with Section 11 of the Act, 1976, therefore, even the proceedings under Section 10(3) of the Act, 1976 is not saved by saving clause contained in Section 3 of the Repealing Act, 1999. Since the respondents have neither paid any compensation in terms of Section 10(3) read with Section 11 of the Act, 1976 nor have taken actual and physical possession of the surplus declared land, therefore, the entire proceedings under the Act, 1976 with respect to the surplus declared land in question stood abated in terms of the Section 4 of the Repealing Act, 1999. The attempt of the respondents for mutation of name of State in the khatauni of Fasli Year 1427-1432 by letter dated 20.09.2021 filed as Annexure-CA-9 to the counter affidavit, is wholly without authority of law and illegal. 11. For all the reasons aforestated, the writ petition is allowed. The respondents are directed to restore the name of the petitioner in the Revenue Records i.e. khatauni and khasra and not to interfere with his occupation, use and enjoyment of the land in question.