Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 519 (ALL)

Anees Khan v. State Of U. P.

2023-02-21

ANISH KUMAR GUPTA, SURYA PRAKASH KESARWANI

body2023
JUDGMENT : Writ 'C' No. 33881 of 2022 1. Heard Sri Madhusudan Dixit holding brief of Sri Atul Kumar Singh, learned counsel for the petitioner and learned Standing Counsel of State-respondents and Sri Jai Bahadur Singh, learned counsel for the respondent no.3. 2. Learned Standing Counsel has filed today a counter affidavit by means of personal affidavit of the respondent no. 2 dated 19.02.2023, which is taken on record. 3. The writ petition has been filed by the petitioner praying for the following relief: "(i) Issue a writ order or direction in the nature of mandamus abate the entire proceeding of Ceiling Case No. 1227 of 1976 State Vs. Nasir Khan in view of the section 3 of the repeal act 1999. (ii) Issue a writ order or direction in the nature of Mandamus directing to the respondents not to interfere in the peaceful possession of the petitioner. (iii) Issue a writ order or direction in the nature of Mandamus directing the respondents to correct the revenue entries so far as Plots no. 897min area 7309.51 Sq. Mt., 718/2 area 665.99 Sq. mt. Village Darakottala Swad, Tehsil & District Saharanpur." 4. On 03.02.2023, this Court passed the following order:- "1. Heard learned counsel for the petitioner and learned Central Government Standing Counsel. 2. Learned Miss Kirti holding brief of Shri Rohan Gupta resp.1counsel for the petitioner states that the petitioner is the grand-son of one Nasir Khan and is in possession of the land declared surplus land. 3. Perusal of Annexure-1 to the writ petition shows that an order under Section 8(4) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the 'Act, 1976') in Case No. 1227 of 1976 (State vs. Shri Nasir Khan) was passed by the competent authority under the Act, 1976 declaring 7975.50 sq. mts. of land as surplus. 4. The petitioner claims himself to be the grand-son of the aforesaid Nasir Khan. As per copy of the Aadhar Card filed alongwith the writ petition, his birth year is 1986. Thus,when the proceedings under the Act, 1976 were initiated, the petitioner was not born and even at the time of passing of the order under Section 8(4) of the Act, 1976, he was not more than 6 or 7 years old. He has obtained certified copy of the order under Section 8 (4) of the Act, 1976 on 26.09.2022. Thus,when the proceedings under the Act, 1976 were initiated, the petitioner was not born and even at the time of passing of the order under Section 8(4) of the Act, 1976, he was not more than 6 or 7 years old. He has obtained certified copy of the order under Section 8 (4) of the Act, 1976 on 26.09.2022. The writ petition is totally silent as to when the name of the State was mutated in the revenue records. 5. Since the petitioner has not filed copies of relevant papers, therefore, we direct the respondent nos.2 and 3 to file counter affidavit by means of their personal affidavits, annexing therewith all copies of relevant records including the copy of Khatauni when the name of the State was mutated and copy of the latest Khatauni. 6. Put up as a fresh on 20.02.2023 at 10:00 a.m." 5. On 20.02.2023 this Court passed another order which is reproduced below: "Heard learned counsel for the parties. Learned standing counsel states on instructions that the disputed land was sold by grand father of the petitioner in the year 1991. Neither father of the petitioner nor grand father of the petitioner has agitated at any point of time. The vendees of the aforesaid sale deed filed a Writ -C No.36489 of 2014 challenging the ceiling proceedings, which is pending. Now the petitioner i.e. the grand son of the original tenure holder has filed the present writ petition. Personal affidavit filed by the respondent no.3 dated 17.02.2023 is taken on record. When the case is next listed, the name of Sri Jai Bahadur Singh shall be shown in the cause list as counsel for the respondent no.3. Put up tomorrow as a fresh case alongwith records of Writ -C No.36489 of 2014 at 10:00 A.M." 6. Today, learned counsel for the petitioner states on instructions of the petitioner that the petitioner wants to withdraw this writ petition and, therefore, it may be dismissed as withdrawn. 7. We find that the present writ petition is not only frivolous but also it has been filed concealing material facts of the case including pendency of the earlier Writ Petition No. 36489 of 2014 filed by the alleged purchaser of the disputed land. 8. Therefore, Writ Petition No. 33881 of 2022 is dismissed with cost of Rs. 10,000/-. 9. The cost of Rs. 8. Therefore, Writ Petition No. 33881 of 2022 is dismissed with cost of Rs. 10,000/-. 9. The cost of Rs. 10,000/-be deposited by the petitioner within one month with the High Court Legal Services Committee, High Court, Allahabad. WRIT 'C' No. 36489 of 2014 10. None appears for the petitioner in the connected Writ Petition No. 36489 of 2014. 11. This writ petition has been filed by the alleged purchaser who claims to have purchased the disputed land by a sale deed dated 11.06.1991 on the grounds that order/notice issued by the competent authority under the Urban Land (Ceiling and Regulation), 1976 (hereinafter referred to as 'the Act, 1976') dated 02.12.1978, was set-aside by the court of District Judge, Saharanpur in Urban Ceiling Appeal No. 394 of 1982 (Naseer Khan vs. U.P. State). 12. We find that the aforesaid appellate order was passed by the court of District Judge holding that the competent authority under Act, 1976, wrongly included plot no. 897 measuring 8837.17 Sq. Mts. as vacant land, without considering that it was being used for agricultural purposes. 13. We find that after conclusion of the aforesaid proceedings, a master plan was notified and enforced w.e.f. 29.09.1987. Therefore, a fresh proceeding under the Act, 1976 was initiated by the competent authority against the tenure holder and a notice was served upon the tenure holder on 14.03.1988. The order under Section 8(4) of the Act, 1976 was passed on 30.03.1993. Publication in the Gazette under Section 10(3) of Act, 1976, was made on 24.03.1993. Notice under Section 10(5) of the Act, 1976, was issued on 10.03.1998 and it was personally served upon one Sri Laiq Ahmad S/o Naseer Khan, who was the tenure holder. The physical possession was taken by the authorities on 21/24.03.1998. 14. The above noted Writ Petition No. 33881 of 2022 has been filed in respect of the same land by the grandson of the original tenure holder. Against the order under Section 8(4) of the Act, 1976, dated 30.03.1993, the petitioner's father/vendee herein filed an Urban Ceiling Appeal No. 45 of 1998 (Haji Raseed vs. State) which was dismissed on 12.07.2022 as not maintainable on the ground that the Act, 1976 has been repealed. 15. In paragraph 4 of the writ petition, it has been stated that a copy of sale deed dated 11.06.1999 has been filed as Annexure-3. 15. In paragraph 4 of the writ petition, it has been stated that a copy of sale deed dated 11.06.1999 has been filed as Annexure-3. The alleged sale deed filed as Annexure-3 to the writ petition, is reproduced below: 16. The aforesaid sale deed filed as Annexure-3 to the writ petition neither discloses particulars of property sold, nor it discloses names and addresses of vendor and vendee nor it shows to be a registered deed nor the date of its execution. 17. As per report of process server dated 16.03.1998, the original tenure holder, Naseer Khan died on 05.10.1996 and a notice under Section 10(5) of the Act, 1976 was personally served upon the son of Sri Naseer Khan, namely, Sri Laiq Ahmad Khan on 11.03.1998. As per counter affidavit and the document filed as Annexure-3 to the writ petition, the physical possession of the land in question was taken by the authorities on 21/24.03.1998. Thus, in view of the facts briefly noted above, neither the petitioner could demonstrate before this Court that there was any registered sale deed nor they could disclose who executed the sale deed nor they could place any specific evidence to enable this Court to decide the disputed question of physical possession of the petitioners over the land in question. 18. Considering the question of proving possession for the purposes of Section 3 of the Repeal Act, 1999, in a recent judgment in the case of State of Tamil Nadu and others vs. M.S. Viswanathan and others, (2021) 10 SCC 614 (Paras-16 and 24); Hon'ble Supreme Court has held as under: "16. In essence, "taking over possession" forms the lifeline of Section 3 of the Repeal Act and a person seeking the benefit of the Repeal Act for restoration of the land should plead and prove that possession was not taken over. 24. Unfortunately, the High Court did not even look into the letter dated 11-11-1980 nor did the High Court examine the records of the Department. Both the Single Judge as well as the Division Bench proceeded on the premise that the land was lying vacant with a compound wall and that therefore, the claim of the landowner to be in possession must be correct. There can hardly be any such presumption. Both the Single Judge as well as the Division Bench proceeded on the premise that the land was lying vacant with a compound wall and that therefore, the claim of the landowner to be in possession must be correct. There can hardly be any such presumption. The existence of the compound wall enclosing even the land that had already been sold by the land owner to the Trust, is admitted by the land owner herself in her letter dated 11-11-1980. Therefore, the High Court committed a grave error in granting the benefit of Section 3(2) of the Repeal Act to the respondents herein." 19. Since as per own case set up by the petitioner, he has allegedly purchased the land in question after statutorily vesting of the land in the State Government under Section 10 of the Act, 1976, therefore, a statutory bar on transfer stood created by sub-Section (4) of Section 10. Hence, in any case, the alleged transfer of property made in contravention of the statutory mandate, is null and void. The correctness of taking over possession of the surplus declared vacant land by the competent authority or his authorised officer, cannot be examined in writ jurisdiction and no relief can be granted by the High Court at the instance of the petitioner herein, who allegedly has purchased the land after vesting of the land with the State Government. Thus, the petitioner has even no locus standi either to challenge possession or to file the present writ petition. The view being taken by us is supported by the law laid down by Hon'ble Supreme Court in the case of State of U.P. and others vs. Adarsh Seva Sahkari Samiti Limited, (2016) 12 SCC 493 (paras-4 to 8), as under: "4. We have examined this aspect. Having regard to the undisputed fact that the respondent has purchased the property from the declarant which is vested with the State Government under Section 10(5) of the Act in terms of of Section 10(3) Notification, therefore, the transfer of property in favour of the respondent, who is claiming its interest in the said property is void ab initio in law. On this ground alone, the order passed by the High cannot be allowed to sustain. 5. It is also brought to our notice by the learned senior counsel Mr. On this ground alone, the order passed by the High cannot be allowed to sustain. 5. It is also brought to our notice by the learned senior counsel Mr. Misra that after the proceedings Under Sections 10(3) and 10(5), notice and the alleged taking over possession of the land in question, the subsequent event has taken place, namely, the said property has been transferred to the Lucknow Development Authority by the State Government and the development authority has laid a park for public use. On this, learned senior counsel for the respondent submits that the said event has taken place during the pendency of the proceedings before the High Court. Though it may be the fact, subsequently, after the transfer of the property in favour of the development authority, the authority has developed a park is an undisputed fact. This is also a very relevant aspect of the matter for this Court to annul the impugned judgment/order passed by the High Court. 6. In our opinion, the respondent herein has no locus standi to challenge the inaction on the part of the appellants viz. not taking possession legally strictly complying with the statutory provisions under Section 10(5) of the Act and taking over possession as provided under Section 10(6) of the Act. At this juncture, this aspect need not be examined by this Court at the instance of the respondent. 7. For the reasons stated supra, the impugned order passed by the High Court to the extent it granted relief to the respondent herein is liable to be set aside and is hereby set aside accordingly. The appeals are allowed accordingly. There shall be no order as to costs. 8. Having allowed the appeals, considering the respondent's submission that the possession of the land was taken over under Section 10(6) of the Act, it is open for the respondent to prefer a claim under Section 11 of the Act for compensation by filing an appropriate application under the provisions of the Act before the appropriate authority, which claim shall be examined independently by the competent authority and pass appropriate orders in accordance with law expeditiously but not later than six months from the date of receipt of such application." (Emphasis supplied by us) 20. The aforesaid Two Judges bench judgment of Hon'ble Supreme Court was affirmed by a Three judges bench judgment of Hon'ble Supreme Court in the case of State of Uttar Pradesh and others vs. Surendra Pratap and others, (2016) 12 SCC 497 (paras-8 and 9), as under: "8. Moreover, in State of U.P. and others vs. Adarsh Seva Sahkari Samiti Limited, (2016) 12 SCC 493 , this Court has observed that after the vesting of the surplus land with the State Government u/s 10(5) of the Act, if any transfer of the property in question is effected, such transfer would be void ab initio and the transferee would not be entitled to challenge the alleged inaction on part of the State Government or the Competent Authority in not taking possession in compliance with the provisions u/s 10(5) of the Act. 9. In the aforesaid circumstances, the view taken by the High Court in the instant case is completely unsustainable. This appeal is, therefore, allowed and the Writ Petition preferred by the respondent Nos.1 and 2 herein stands dismissed with costs." (Emphasis supplied by us) 21. In the case of State of Assam vs. Bhaskar Jyoti Sharma and others, (2015) 5 SCC 321 (Paras-16, 17 and 19), Hon'ble Supreme Court held as under: "16. 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. 17. 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. 17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram's case (supra). That decision does not, in our view, lend much assistance to the respondents. We say so, because 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 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. That is because Bhabadeb Sarma-erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so. 19. In support of the contention that the respondents are even today in actual physical possession of the land in question reliance is placed upon certain electricity bills and bills paid for the telephone connection that stood in the name of one Mr. Sanatan Baishya. It was contended that said Mr. Sanatan Baishya was none other than the caretaker of the property of the respondents. There is, however, nothing on record to substantiate that assertion. The telephone bills and electricity bills also relate to the period from 2001 onwards only. Sanatan Baishya. It was contended that said Mr. Sanatan Baishya was none other than the caretaker of the property of the respondents. There is, however, nothing on record to substantiate that assertion. The telephone bills and electricity bills also relate to the period from 2001 onwards only. There is nothing on record before us nor was anything placed before the High Court to suggest that between 7th December, 1991 till the date the land in question was allotted to GMDA in December, 2003 the owner or his legal heirs after his demise had continued to be in possession. All that we have is rival claims of the parties based on affidavits in support thereof. We repeatedly asked learned counsel for the parties whether they can, upon remand on the analogy of the decision in the case of Gyanaba Dilavarsinh Jadega (supra), adduce any documentary evidence that would enable the High Court to record a finding in regard to actual possession. They were unable to point out or refer to any such evidence. That being so the question whether actual physical possession was taken over remains a seriously disputed question of fact which is not amenable to a satisfactory determination by the High Court in proceedings under Article 226 of the Constitution no matter the High Court may in its discretion in certain situations upon such determination. Remand to the High Court to have a finding on the question of dispossession, therefore, does not appear to us to be a viable solution." (Emphasis supplied by us) 22. The aforesaid judgment of Hon'ble Supreme Court in the case of Bhaskar Jyoti Sharma and others (supra) has been followed by a coordinate bench of this court in the case of Shiv Ram Singh vs. State of U.P. and others, 2015 (7) ADJ 630 and the writ petition was dismissed on the ground of laches, observing as under: "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 petitioner moved the first writ petition in 2002 nearly three years after the Repeal Act had come into force. After the earlier writ petition was disposed of by directing the District Magistrate to pass an order on the representation of the petitioner, an order was passed by the District Magistrate on 10 May 2007. The petitioner moved the first writ petition in 2002 nearly three years after the Repeal Act had come into force. After the earlier writ petition was disposed of by directing the District Magistrate to pass an order on the representation of the petitioner, an order was passed by the District Magistrate on 10 May 2007. The petitioner thereafter waited for a period of over two years until the present writ petition was filed in July 2009. If the petitioner had been dispossessed of the land without due notice under Section 10(5), such a grievance could have been raised at the relevant time. As a matter of fact, it has been the case of the State all along that a notice under Section 10(5) was, in fact, issued in the present case which would be borne out from the original file which has been produced before the Court. 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." (Emphasis supplied by us) 23. Thus, for all the reasons aforestated and following the law laid down in the judgments referred to above, we do not find any merit in this writ petition. Thus, the Writ Petition No. 33881 of 2022 is dismissed with cost of Rs. 10,000/-which shall be deposited by the petitioner with High Court Legal Services Committee, High Court, Allahabad within one month. The writ petition No. 36489 of 2014 is also dismissed. 24. Consequently, the Writ 'C' No. 36489 of 2014 is dismissed.