HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Chief Justice's Court Case:- WRIT - C No 37964 of 2009 Petitioner:- Shiv Ram Singh Respondents:- State of U P & Ors
Counsel for Petitioner:- K K Tripathi, K M Garg, Rajiv Sawhney Counsel for Respondents :- CSC,Shailendra Kr Singh, Vimlesh Kr Rai Hon'ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice Hon'ble Dilip Gupta, J (Per Dr D Y Chandrachud, CJ) By these proceedings under Article 226 of the Constitution, the petitioner has sought to challenge an order dated 10 May 2007 passed by the District Magistrate, Kanpur Nagar holding that possession of the land declared surplus having been taken on 25 June 1993, the petitioner was not entitled to the benefit of the provisions of Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 19991 (Act No 15 of 1999).
The dispute in the present case relates to land admeasuring 83423.42 sq meter situated in Village Taudhakpur, Pargana and District Kanpur Nagar. In pursuance of the return submitted by the petitioner who is the tenure holder, a draft statement under Section 8(3) of the Urban Land (Ceiling and Regulation) Act, 19762 was issued. On 25 January 1983, an order was passed under Section 8(4) by which, after exempting an area admeasuring 1000 sq meter of land, 83423.42 sq meter was declared as surplus. Following the final draft statement, a notification under Section 10(1) was issued on 15 May 1985. Thereafter, a notification under Section 10(3) was issued and published in the official gazette on 2 June 1986. Upon the vesting of the land in the State Government under Section 10(3), a notice under Section 10(5) was issued on 25 February 1987. On 14 February 1992, the Competent Authority (Urban Land Ceiling), Kanpur addressed a communication to the Tehsildar, Kanpur Nagar recording that in pursuance of an earlier letter dated 25 February 1987, possession of the land be taken over and the land be mutated in the name of the State Government. The case of the State, which is disputed by the petitioner, is that on 25 June 1993, possession of the land was taken over which is prior to the enforcement of the Repeal Act. In a writ petition3 filed by the petitioner before this Court after the enforcement of the Repeal Act, it was urged that the petitioner was still in possession over the land which was declared surplus and hence, following the Repeal Act, possession cannot be taken over from him. A Division Bench of this Court by an order dated 29 November 2006 directed that if the petitioner files a representation to the District Magistrate within a period of one month, the representation shall be decided within a period of three months from the date of its receipt. Until the disposal of the representation, parties were directed to maintain status quo. In pursuance of the order passed by the Division Bench, the petitioner was heard by the District Magistrate and an order was passed on 10 May 2007 holding that possession had already been taken over on 25 June 1993 and hence the petitioner would not be entitled to the benefit of the Repeal Act. The petitioner moved these proceedings in the month of July 2009 in order to challenge the order of the District Magistrate and for a mandamus restraining the respondents from dispossessing him from the land declared as surplus.
A counter affidavit was filed by the State on 14 September 2009. In the counter, it has been stated that a notification under Section 10(3) was published on 2 June 1986 following which a notice under Section 10(5) was issued on 25 February 1987. On 25 June 1993, it has been stated, possession was taken over, following which the amount quantified as compensation has been determined and a notice under Section 11 has been addressed to the tenure holder to file his objection to which no reply has been filed.
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. The case of the State which has been set out in a counter affidavit by the Jal Nigam, is that after the representation of the petitioner was rejected in 2007 by the District Magistrate, he remained inactive for more than two years. In the meantime in 2008, a boundary wall was constructed and the construction of a Sewage Treatment Plant4 for treating 210 MLD of sewage commenced. According to the Jal Nigam, by the time the writ petition was filed, nearly 65 percent of the work had been completed at a cost of Rs 73 crores and though the petitioner was aware of the construction, no steps were taken to agitate his rights, if any, until the petition was filed in July 2009 in which an ex parte ad interim order was passed on 27 July 2009 for the maintenance of status quo. In the affidavit of the Jal Nigam, the position as of 13 May 2014 has been summarised to state that an amount of Rs 124.38 crores has been spent and about 87 percent of the work has been completed.
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 Ram5. 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, 19836 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. Thirdly, it has been sought to be urged that the case of the State that the construction of the STP commenced in 2008 is contrary to the communications of the Collectorate at Kanpur Nagar to the Kanpur Jal Sansthan of 17 March and 22 March 2012 indicating that the land was handed over to Kanpur Development Authority on 14 March 2002 for safeguarding and seeking a clarification on how the land has been put to use in the meantime. Moreover, it has been sought to be urged that the construction of the STP commenced only some time in 2010. On the basis of these submissions, it has been submitted that the case of the State to the effect that possession was taken over on 25 June 1993 cannot be accepted and there being no valid taking over of possession prior to the Repeal Act, the petitioner would be entitled to the benefit of the provisions of Section 3. The State, it has been urged, would be duty bound to take recourse to due process of law for divesting the petitioner of his title.
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 Sarma7 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. Relying on the subsequent decision, it has been urged that, in the present case, even after the Repeal Act was brought into force with effect from 18 March 1999, no steps were taken by the petitioner until a writ petition was filed before this Court three years later in 2002. After the earlier writ petition was disposed of in 2006 directing the District Magistrate to dispose of the representation of the petitioner, the District Magistrate passed an order on 10 May 2007. In the submission of the learned Chief Standing Counsel, even thereafter the petitioner waited for nearly two years to initiate the writ proceedings. Hence, it has been urged that the principle which has been laid down in the subsequent decision by the Supreme Court in Bhaskar Jyoti Sarma (supra) would apply in the facts of the present case. Secondly, it has been urged that, in the present case, as the original file which has been produced before the Court would indicate, a notice was issued under Section 10(5) on 25 February 1987, possession was taken over on 25 June 1993 and a possession receipt to that effect had been duly executed. Thirdly, it has been submitted that the provisions contained under the Directions of 1983 have been duly complied with. Paragraph 3(2) of the Directions of 1983 requires that an order under Section 10(5) has to be communicated to each land holder and the date of issuance and service of the order is to be entered in Column 8 of Form ULC-I. Moreover, under Para 3(3), on possession of the excess vacant land being taken, necessary entries are to be made in a register in Form ULC-III. The requisite formalities under the Directions, it has been stated, have been fulfilled. Finally, it has been urged on behalf of the State that as a result of the delay on the part of the petitioner in moving these proceedings, the construction of the STP had already commenced prior to the institution of the writ proceedings. The STP is expected to have a capacity of treating 210 MLD of sewage per day to meet a 406 MLD discharge of domestic sewage in Kanpur Nagar. It has been stated that land admeasuring 63.3394 hectares was made available by the Municipal Commissioner of the Nagar Nigam on 28 December 2006 on which a boundary wall was constructed in 2008 and in 2010 construction of the STP commenced. The revised cost of the STP is Rs 141.96 crores. According to the State, 4.46 hectare is covered by the interim order of status quo passed in these proceedings where work pertaining to a polishing pond unit was being carried out. As a result of the interim order of status quo, it has been submitted, this work had to be stopped. In consequence, it would not be possible to commence the operation of the STP so long as the interim order holds the field. In the meantime, it has been submitted that the work in regard to the rest of the facility has been completed to the extent of 89 percent at a cost of Rs 126 crores.
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. 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) read 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."
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. 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. 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."
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 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."
In the present case, the learned Chief Standing Counsel has produced the original file for the perusal of the Court. The material before the Court indicates that the Directions of 1983 were duly observed. Direction 3(2) envisages that an order in Form ULC-II has to be sent to each land holder as prescribed under Section 10(5) and the date of issue and service of the order is to be entered in Column 8 of Form ULC-I. This procedure has been complied and we may only note that a copy of the original ULC-II register has been produced for the perusal of the Court. Similarly, direction 3(3) contemplates that 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, entries will be made in a register in Form ULC-III. The original Form ULC-III has similarly been produced before the Court. Entries have been made in compliance with direction 3 both in ULC-II and ULC-III registers. In the present case, it is also clear from the record that on 14 February 1992, a communication was addressed by the Competent Authority to the Tehsildar drawing attention to an earlier letter dated 25 February 1987 and requesting that possession of the land be taken over. A copy of the letter dated 25 February 1987 forms part of the original record which was produced by the learned Chief Standing Counsel. On 25 June 1993, possession of the land was taken over. The possession receipt has been duly executed by the Naib Tehsildar and by the Kanoongo. In this view of the matter, we are unable to accept the contention of the petitioner that possession of the land was not taken over prior to the date of the Repeal Act.
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 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. However, we would hasten to add that this is quite apart from the fact that we have, independent of this finding, held that possession was in fact taken over prior to 18 March 1999 consequent upon which the petitioner would not be entitled to the benefit of the Repeal Act. As a result of the delay on the part of the petitioner, the construction of the STP particularly on the area of land which is not covered by the interim order passed in these proceedings has proceeded apace and the work has been substantially completed and a large amount of public expenditure has been incurred in the meantime. This is an aspect which cannot be ignored by the Court in the ultimate conclusion.
For these reasons and having considered the submissions which have been urged on behalf of the petitioner, we find no merit in the petition. The petition is accordingly dismissed. In consequence, the interim order shall stand discharged. Original records be returned to the learned Chief Standing Counsel.
However, there shall be no order as to costs.
Order Date :- 27.7.2015 AHA (Dr D Y Chandrachud, CJ) (Dilip Gupta, J) Chief Justice's Court C M Substitution Application No 109978 of 2011 Re:
Case:- WRIT - C No 37964 of 2009 Petitioner:- Shiv Ram Singh Respondents:- State of U P & Ors Counsel for Petitioner:- K K Tripathi, K M Garg, Rajiv Sawhney Counsel for Respondents :- CSC, Shailendra Kr Singh, Vimlesh Kr Rai Hon'ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice Hon'ble Dilip Gupta, J The substitution application is allowed. Let substitution be carried out within 24 hours.
There shall be no order as to costs.
Order Date :- 27.7.2015 AHA (Dr D Y Chandrachud, CJ) (Dilip Gupta, J)