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2023 DIGILAW 176 (ALL)

Kalawati Devi v. State of U. P.

2023-01-18

RAJENDRA KUMAR IV, SUNEET KUMAR

body2023
JUDGMENT : Suneet Kumar, J. 1. Heard learned counsel for the parties. 2. The petitioner claims to be the subsequent purchaser of a portion of the surplus land declared under the Urban Land (Ceiling and Regulation) Act, 1976 (for Short “the Act”) from the land holder, vide sale deed dated 25.01.1994. 3. By the instant writ petition, petitioner seeks a direction to the respondents not to dispossess the petitioner from Plot No. 12633 situated in Village Basaratpur Tappa, Qasba, Pargana Haveli, Tehsil Sadar, District Gorakhpur, i.e. the land which came to be declared surplus on 23.09.1978. Further, direction has also been sought to quash the order dated 27.04.2011, passed by the second respondent District Magistrate, Gorakhpur, rejecting the representation of the petitioner. 4. The facts, inter se, the parties are not in dispute that the land holder Khelai, son of, late Ganpat, submitted a return no. 254 under Section 6(1) of the Act, in respect of Plots No. 1263, 1538 and a residential house. The competent authority upon survey prepared a draft statement and the returnee was subjected to notice to file objection under Section 8(3) of the Act. Khelai filed objections on 15.07.1978, the competent authority declared 1475.67 sq. meter land as excess land, vide order dated 23.09.1978, under Section 8(4) of the Act, from the afore-noted plots. No objection was filed against the order, consequently, notification under Section 10(1) of the Act was duly published in the official gazette on 26.12.1978, followed by, notification under Section 10(3) of the Act, duly notified on 29.08.1980. Thereafter, followed by notice under Section 10(5) of the Act on 17.10.1981. Pursuant, thereof, Circle Lekhpal took possession on 14.12.1983. The name of the State came to be recorded in the revenue record in 1399-1404 Fasali, in respect of the excess land, after expunging the name of tenure holder Khelai. 5. In the afore-noted factual backdrop, it is submitted by the petitioner that the original land owner i.e. Khelai vide sale deed dated 25.01.1994, transferred 275 sq. meter of the excess declared land of plot no. 1263, in favour of the petitioner. Thereafter, the name of the petitioner came to be mutated by the Tehsildar in the revenue record on 15.04.1994 (1401 Fasali). meter of the excess declared land of plot no. 1263, in favour of the petitioner. Thereafter, the name of the petitioner came to be mutated by the Tehsildar in the revenue record on 15.04.1994 (1401 Fasali). It is submitted that since State had not taken possession, from the erstwhile owner, petitioner is entitled to retain possession in view of Urban Land Ceiling and Regulation (Repeal Act, 1999) (for short “Repeal Act”), which came into force on 18.03.1999. 6. It is submitted that the Repeal Act mandated that all proceedings relating to any order made under the principal Act pending immediately, before the commencement of the Repeal Act, before any Court, Tribunal or Authority shall abate provided that the section shall not apply to such proceedings relatable to the land, possession of which has been taken over by the State Government or by any Authority duly authorized by the State in this behalf. 7. Learned Standing Counsel in rebuttal submits that against the proceedings under the Act, the original land holder did not file any objection or appeal. The proceedings came to be concluded on 19.08.1981, with the surplus land vesting in the State, and thereafter, possession was taken under Section 10(5) of the Act on 14.12.1983, thereafter, the name of the State was duly entered in the revenue record. Further, it is submitted that the petitioner would have no locus being a subsequent purchaser after the notification i.e. land vesting in the State (Section 10(1) / 10(3)), and therefore, it is urged that the transfer is a nullity i.e. void ab-initio. 8. Rival submissions fall for consideration. 9. The question posed before the Division Bench of this Court in Shiv Ram Singh Vs. State of U.P. and others, Writ-C No. 37964 of 2009 is extracted : “The issue which has been raised before the Court is whether, as a result of the repeal of the principal Act with effect from 18 March 1999, the petitioner would be entitled to the benefit of the Repeal Act. That, in turn, would depend on whether possession of the land was taken over by the State or by any person duly authorised prior to 18 March 1999.” 10. That, in turn, would depend on whether possession of the land was taken over by the State or by any person duly authorised prior to 18 March 1999.” 10. The Court speaking through D.Y. Chandrachud, C.J. (as My Lord then was) noted the submission made on behalf of the petitioner : “On behalf of the petitioner, it has been submitted that the issuance of a notice under Section 10(5) as well as a notice under Section 10(6) is mandatory having regard to the judgment of the Supreme Court in State of Uttar Pradesh Vs. Hari Ram, (2013) 4 SCC 280 . In the present case, it has been sought to be urged that the State has not been able to establish that a notice either under Section 10(5) or under Section 10(6) was duly served upon the petitioner. Secondly, it has been submitted that under the Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983, [Directions of 1983] issued under Section 35 of the principal Act, a detailed procedure has been prescribed for taking possession of vacant land in excess of the ceiling limit and unless that procedure has been duly followed, it cannot be held that possession was validly taken in the eyes of law.” 11. The stand of the State before the Court was noted as follows : “On behalf of the State, the learned Chief Standing Counsel has submitted, firstly, that the decision of the Supreme Court in Hari Ram's case (supra) has since been considered by the Supreme Court in a subsequent judgment in State of Assam Vs. Bhaskar Jyoti Sarma, (2015) 5 SCC 321 in which it has been clarified that the earlier decision did not deal with the question whether a breach of Section 10(5) of the principal Act and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eyes of law.” 12. The Court considered the rival contentions on the following question : “The basic issue which falls for consideration in these proceedings is whether possession of land declared surplus had been taken over from the petitioner prior to 18 March 1999. The Court considered the rival contentions on the following question : “The basic issue which falls for consideration in these proceedings is whether possession of land declared surplus had been taken over from the petitioner prior to 18 March 1999. Section 3(1)(a) of the Repeal Act provides that repeal of the principal Act shall not affect 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 by any person duly authorised by the State Government in this behalf or by the competent authority.” 13. The relevant provisions for taking over possession are to be found in sub-sections (5) and (6) of Section 10 of the principal Act. Sub-sections (5) and (6) reads as follows : "(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 concerned State Government 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 the 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." 14. The Court in Shiv Ram Singh (supra) considered the earlier decision of the Supreme Court in Hari Ram (supra) followed by the subsequent decision rendered in Bhaskar Jyoti Sharma (supra) with regard to the failure of the Government / Authorized person / Competent Authority, to issue notice to the land owners under Section 10(5) of the Act. The Court in Shiv Ram Singh (supra) considered the earlier decision of the Supreme Court in Hari Ram (supra) followed by the subsequent decision rendered in Bhaskar Jyoti Sharma (supra) with regard to the failure of the Government / Authorized person / Competent Authority, to issue notice to the land owners under Section 10(5) of the Act. The Division Bench in Shiv Ram Singh (supra) discussed the impact of lack of notice under Section 10(5) and its consequence in view of the Repeal Act in the following terms. “Under sub-section (5) of Section 10 of the principal Act, where any vacant land is vested in the State Government under sub-section (3), the competent authority is empowered, by notice in writing, to order any person who may be in possession, to surrender or deliver possession of the land to the government or to the duly authorised person within thirty days of the service of notice. Under sub-section (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 and may for that purpose use such force as may be necessary. These provisions came up for consideration before the Supreme Court in Hari Ram (supra). The Supreme Court observed that sub-section (5) of Section 10 visualizes a situation of a peaceful surrender and delivery of possession, while sub-section (6) of Section 10 contemplates a situation of forceful dispossession. Forceful dispossession, it was held, would result where a person had failed to peacefully surrender or give delivery of possession under Section 10(5). Though Section 10(5) uses the expression 'may' in regard to the issuance of a notice, the Supreme Court held that the provision must be understood as 'shall'. In other words, the issuance of a notice under sub-section (5) of Section 10 would be mandatory. This decision has since been considered in Bhaskar Jyoti Sarma (supra). In the subsequent decision, the Supreme Court observed that the issue which needed examination was whether the failure of the Government or the authorised officer or the competent authority to issue notice to the land owners under Section 10 (5) would result in an inference or conclusion that such a dispossession is no dispossession in the eyes of law and would hence attract the provisions of Section 3 of the Repeal Act. The answer to that question was held to be in the negative.” 15. In Shiv Ram Singh (supra) the Court after noticing the provision of Section 10(3), 10(5) and 10(6), was of the firm view that the grievance cannot be raised long after an alleged violation of Section 10(5). Assuming that the alleged dispossession was not proceeded by any notice under Section 10(5) of the Act, the erstwhile owner could have made a grievance based on Section 10(5), and even sought restoration. In that event upon such restoration of the land, the erstwhile owner can still be evicted by the State resorting to Section 10(5) / 10(6) of the Act upon failure to deliver possession. A person, therefore, who had his land upon being declared surplus under Section 10(3) may not consider it worthwhile to agitate the violation of Section 10(5) for want of due procedure, in that event the owner can be dispossessed by the State authorities the very next day by following the procedure and taking possession under Section 10(5). In that view of the matter, it would be an academic exercise for the owner in possession to find fault with his dispossession on that ground that no notice under Section 10(5) was served upon him. It is in this view of the matter the owner after notification under Section 10(3) has not protested or agitated with regard to his dispossession. 16. Further, any grievance based on Section 10(5) of the Act ought to have been made by the owner within a reasonable time of such dispossession. In any such situation, the owner or a person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would give a license to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only to reap the fortiutions circumstance of a Repeal Act. 17. Shiv Ram Singh (supra), thereafter explained and spelled out the law pertaining to dispossession of the land owner without notice under Section 10(5) of the Act. 17. Shiv Ram Singh (supra), thereafter explained and spelled out the law pertaining to dispossession of the land owner without notice under Section 10(5) of the Act. “Hence, the law which has been laid down is that dispossession of the land owner without a notice under Section 10(5) would entitle the land owner to complain of the act of dispossession without notice, in which event the State can issue a fresh notice before dispossessing the land owner but unless there is something inherently wrong so as to affect the very process of taking over possession, such as the identity of the land or the boundaries thereof, a person who had lost his land by reason of the land being declared surplus under Section 10 (3) may not make a grievance since he would be conscious of the fact that the State can take over possession by a simple act of giving a notice. In the view of the Supreme Court, such a grievance cannot be raised long after an alleged violation of Section 10(5). We extract, herein below, the observations of the Supreme Court in the judgment: "...what needs examination is whether the failure of the Government or the authorised officer or the competent authority to issue a notice to the land owners in terms of Section 10(5) would by itself mean that such dispossession is no dispossession in the eye of law and hence insufficient to attract Section 3 of the Repeal Act. Our answer to that question is in the negative. We say so because in the ordinary course actual physical possession can be taken from the person in occupation only after notice under Section 10(5) is issued to him to surrender such possession to the State Government, or the authorised officer or the competent authority. There is enough good sense in that procedure inasmuch as the need for using force to dispossess a person in possession should ordinarily arise only if the person concerned refuses to cooperate and surrender or deliver possession of the lands in question. That is the rationale behind Sections 10(5) and 10(6) of the Act. But what would be the position if for any reason the competent authority or the Government or the authorised officer resorts to forcible dispossession of the erstwhile owner even without exploring the possibility of a voluntary surrender or delivery of such possession on demand. That is the rationale behind Sections 10(5) and 10(6) of the Act. But what would be the position if for any reason the competent authority or the Government or the authorised officer resorts to forcible dispossession of the erstwhile owner even without exploring the possibility of a voluntary surrender or delivery of such possession on demand. Could such use of force vitiate the dispossession itself or would it only amount to an irregularity that would give rise to a cause of action for the aggrieved owner or the person in possession to seek restoration only to be dispossessed again after issuing a notice to him. It is this aspect that has to an extent bothered us. The High Court has held that the alleged dispossession was not preceded by any notice under Section 10(5) of the Act. Assuming that to be the case all that it would mean is that on 7th December, 1991 when the erstwhile owner was dispossessed from the land in question, he could have made a grievance based on Section 10(5) and even sought restoration of possession to him no matter he would upon such restoration once again be liable to be evicted under Sections 10(5) and 10(6) of the Act upon his failure to deliver or surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as prescribed, it may still be not enough for him to retain the land for the authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5). It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that no notice under Section 10(5) had been served upon him." Again, the Supreme Court has observed : "The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure." 18. The earlier decision in Hari Ram (supra) has been distinguished in the following observations : "....This Court was in Hari Ram's case (supra) considering whether the word 'may' appearing in Section 10(5) gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of law did not fall for consideration in that case. In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act." 19. The Division Bench in Shiv Ram Singh (supra) made the following observation on raising the grievance by the land owner or any person belatedly and not at the relevant time : “We must also advert to another aspect of the matter particularly having regard to the recent decision of the Supreme Court in Bhaskar Jyoti Sarma (supra). The issue is whether such a grievance could be made long after, before the Court. The petitioner had waited for nearly three years after the Repeal Act came into force to file the first writ petition and thereafter for a period of over two years after the disposal of the representation despite the finding of the District Magistrate that possession was taken over on 25 June 1993. In our view, such a belated challenge should not, in any event, be entertained.” 20. In the afore-noted legal proposition with regard to possession of the surplus land which finally came to be taken by the State, the question that arises, in the given facts, is as to whether the petitioner would have right to retain possession of the surplus land transferred to him by the erstwhile owner after vesting of the land in the State under Section 10(3) of the Act. 21. 21. The relevant provision of Section 10(4) is extracted : “10(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.” 22. The question of issuing notice under Section 10(5) to the petitioner after 16 years from the date of notice under Section 10(1) of the Act does not arise. The State had taken possession from the land owner way back in 1981. The subsequent transfer of the land in 1994, followed by mutation of the name of the petitioner, would have no bearing on the right of the petitioner. The transfer of the surplus land by the erstwhile owner, in the eye of law being nullity i.e. void ab-initio would not confer any right or title upon the petitioner. The possession of the petitioner after the proceedings concluding under the Act, upon the State taking possession, would merely be a case of encroachment of State land. The Repeal Act would not come to the assistance of the petitioner, rather, the case of the petitioner would not fall within the ambit and scope of the Repeal Act being subsequent purchaser of the surplus land after notification under Section 10(1) / 10(3) of the Act. 23. Having regard to the facts and circumstances of the case, petitioner lacks locus, and any case, the proceedings came to be set up belatedly by the petitioner in 2006 by approaching this Court and filing a petition, being Writ Petition No. 14698 of 2006, which came to be disposed of directing the Collector to take a decision. Pursuant thereof, the impugned order came to be passed on 27.04.2011, whereby, the second respondent after recording the facts arrived at a conclusion that the transfer of the land by the erstwhile owner, declared surplus, vesting in the State, is a void document and does not confer any right and title upon the petitioner. Pursuant thereof, the impugned order came to be passed on 27.04.2011, whereby, the second respondent after recording the facts arrived at a conclusion that the transfer of the land by the erstwhile owner, declared surplus, vesting in the State, is a void document and does not confer any right and title upon the petitioner. The erstwhile tenure holder (Khelai), had no title or ownership to transfer the land, the petitioner on the strength of alleged possession on State land cannot agitate his dispossession in view of Repeal Act. The surplus land vested with the State upon notification under Section 10(3) followed by dispossession of the erstwhile owner of the land (Khelai) under Section 10(5) way back in 1981. The owner never protested or agitated his dispossession before any authority or Court. In the circumstances, the subsequent buyer (Petitioner) cannot raise challenge to the procedure of dispossession at belated stage on the strength of a sale deed being void ab-initio. 24. The writ petition being devoid of merit, is accordingly, dismissed. 25. No order as to costs.