Kailash & Another vs State Of U.P. & Others
2012 Latest Caselaw 2455 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 37
 

 
Case :- WRIT - C No. - 1106 of 2010
 

 
Petitioner :- Kailash & Another
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- N.K. Singh,Ranjeet Asthana
 
Respondent Counsel :- C.S.C.,P.K.Singh
 

 
Hon'ble Sunil Ambwani,J.

Hon'ble B. Amit Sthalekar,J.

(Delivered by Hon.B.Amit Shthalekar,J.)

This writ petition has been filed by the petitioners seeking the quashing of the order dated 22.4.1981 and a further direction commanding the respondents not to dispossess the petitioners from Arazi no.701, area 0.279 hectares and Arazi no.786, area 0.607 hectares situate in village Sonakpur, Tehsil and district Moradabad.

The facts of the case in brief are that one Tejram was the owner of the plot nos.701 and 786, situate in village Sonakpur, Tehsil and district Moradabad.

On the coming into force of the Urban Land (Ceiling and Regulation) Act, 1976 (The Act), proceedings were initiated for acquiring the land in excess of the permissible limit held by Sri Tejram by declaring the same to be the surplus. The said proceedings were initiated by taking recourse to the provisions of Sections 6 to 11 of the Act and an area measuring 7,177.46 square meters of land was declared to be the excess vacant land and, therefore, surplus.

The contention of the petitioners in the writ petition is that on 30.7.2009, they submitted an application before the Secretary, Awas Anubhag-6, U.P. Lucknow for declaring the proceedings of ceiling initiated on 22.4.1981 as having abated in view of the provisions of Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, i.e 1999 (The Repeal Act) on the ground that on the date of coming into force of the Repeal Act on 18.3.1999, the petitioners were still in possession of the land in dispute and that the possession as contemplated under Section 10(5) or 10(6) of the Act, 1976 had not been taken by the State Government and there was no vesting of the said land in the State Government as contemplated under the Provisions of Section 10(3) of the Act, 1976. The petitioners have by way of annexure 3 to the writ petition filed the Khatauni of 1417 Fasli corresponding to the year 2010 to show that the names of the petitioner no.1 Kailash is still shown as the tenure-holder of Arazi no.701, area 0.279 and Arazi no.786, area 0.607.

We have heard Sri Naveen Sinha, learned Senior Counsel assisted by Sri Nipun Singh for the petitioners, and the learned Standing Counsel appearing for respondents no.1 and 2 and Sri P.K. Singh, learned counsel appearing for the Moradabad Development Authority.

The case of the petitioners is that on the date of coming into force of the Repeal Act, 1999 i.e. on 18.3.1999, the petitioners continued to be in actual physical possession over the plot no.701, measuring 0.279 hectares and plot no.786, measuring area 0.607 hectares situate in village Sonakpur, Tehsil and district Moradabad and, therefore, they were entitled to the benefit of the provisions of Section 3 of the Repeal Act, 1999 and all proceedings taken under the Urban Land (Ceiling and Regulation) Act, 1976 would be deemed to have abated.

Rebutting the submissions of the learned counsel for the petitioners, the learned Standing Counsel has stated that proceedings were initiated under Section 6(1) of the Act, 1976 pursuant to the statement in respect of ceiling limit submitted by Sri Tejram, S/o Sri Mewa. A draft statement was prepared as contemplated under Section 8(1) of the Act, 1976 and thereafter notices were issued to Sri Tejram as contemplated in sub-section (3) of Section 8 proposing to declare 7177.46 square meters of land to be in excess of the ceiling limit. The case of the respondents further is that though notice was sent by registered post and was also served upon Sri Tejram, no objections were received in the office of the competent authority and, therefore, the competent authority proceeded to make a final statement under Section 9 of the Act on 14.4.1981. A copy of the final statement was sent to the petitioner on 22.4.1981 and was served upon him on 23.4.1981. Thereafter a notification was published under Section 10(1) and 10(3) of the Act in the Official Gazette on 26.12.1981 and 7.4.1984 declaring 7177.46 square meters of land to be surplus. A notice under Section 10(5) of the Act was issued on 12.6.1984 to Sri Tejram directing him to surrender possession of the surplus land to the Collector. Possession was taken by the Tehsildar, Moradabad of the surplus land on 27.8.1984. A copy of the Dakhalnama dated 27.8.1984 has been filed as annexure no.2 to the counter affidavit. Thereafter the land in question was transferred to the Moradabad Development Authority.

Initially, the Moradabad Development Authority had not been impleaded in the said writ petition but during the pendency of the proceedings, an application for impleadment of the Moradabad Development Authority, Moradabad through it's Vice Chairman as respondent no.3, was filed by Sri P.K. Singh on 26.5.2011. The impleadment application was allowed by the Court by order dated 21.2.2012 and the same has also been incorporated on 12.3.2012.

In the counter affidavit filed by the Moradabad Development Authority, it has been stated that the plot no.701 and 786, total area measuring 9177.46 square meters situate in village Sonakpur Pargana, Tehsil and district Moradabad was originally recorded in the name of one Sri Tejram, S/o Mewa, R/o Village Milak Bhola Singh, Moradabad. The proceedings were initiated for declaring as surplus, land held in excess of the ceiling limit vide case no.2803/4116 State versus Tejram under Section 8 (4), and 9 of the Urban Land (Ceiling and Regulation) Act, 1976. Judgment in the said case was delivered on 14.4.1981 by the competent authority and a total area of 7177.46 square meter of land was declared as surplus. This area comprised an area of 6070.50 sq. meter from plot no.786 and area of 1106.96 sq. meter out of plot no.701. The preparation of final statement and publication of notice under Section 10(1) and 10(3) of the Act are not disputed, rather reiterated. Taking of possession by the Tehsildar, Moradabad on 27.8.1984 after due notice to Sri Tejram on 12.6.1984 is not disputed.

Sri P.K. Singh further submitted that in pursuance of G.O. dated 4.6.1987, the possession of the land in dispute along with various other lands, declared surplus, in village Sonakpur, Moradabad was transferred by the State Government to the Moradabad Development Authority on 18.1.1990 for purposes of it's Residential Scheme. Transfer/possession memo dated 18.1.1990 was executed by the Naib Tehsildar, Sadar, Moradabad/Naib Tehsildar, Urban Land Ceiling, Moradabad and Assistant Engineer/Junior Engineer, Moradabad Development Authority, Moradabad.

Sri P.K. Singh further referred to the counter affidavit filed on behalf of the Moradabad Development Authority wherein it has been stated that after completion of the proceedings under the Ceiling Act, the original land holder was left with 1683 square meters of land out of the total area of 2790 square meters of the plot no.701. This remaining land was inherited by the four sons of Sri Tejram namely Sri Kailash, Sri Asharam (petitioners no.1 and 2), Sri Om Prakash and one Sri Tara, S/o Chiranjee (S/o Sri Tejram). Each of these heirs acquired a 1/4th share of the remaining land of plot no.701. It is further stated that by means of the registered sale deed dated 22.10.2009, the petitioners 1 and 2 (sons of Sri Tejram) transferred their share, total 840 square meters of land in favour of the Moradabad Development Authority, whereas Om Prakash transferred his share comprising 420 square meters in favour of Smt. Madhurani and Ramesh Chandra Agarwal vide sale deed dated 19.7.2001. Sri Tara, S/o Chinranjee (S/o Sri Tejram) executed a sale deed on 6.12.2010 and thereby transferred his share comprising 420 square meters land of the plot no.701 in favour of Smt. Shashi Bala, W/o Malkhan Singh. Thus out of the remaining area of 1683 square meters of plot no.701, an area measuring 1260 square meters was purchased by the Moradabad Development Authority by registered sale deed, from the two petitioners and Smt. Shashi Bala. The revenue records of the khatauni of 1414-1419 Fasli showing the transfers so made have been filed as annexure no.6 to the counter affidavit.

In the counter affidavit of the Moradabad Development Authority (MDA) it is further stated that in the sale deed executed in favour of MDA on 22.10.2009, the petitioners have admitted that the land situate in the north of their share of plot no. 701 is surplus ceiling land vesting in the State. A copy of the sale deed has been filed as Annexure-7 to the counter affidavit.

On 18.1.1990 by means of possession memo about 20 hectares of surplus ceiling land was also stated to have been transferred by the State Government in favour of MDA. It is also stated that a residential scheme has been sponsored by the State Government for economically weaker section of the society of villages Sonakpur, Bhogpur Mitahuni under the Manniya Kanshi Ram Ji Garib Avasiya Yojana. For the purposes of execution of the scheme, land involving 51.9 hectares has been proposed for the residential schme by including the above referred 20 hectares of surplus ceiling land and arranging the balance land of about 31.95 hectares by direct purchase/compulsory land acquisition as per Samjhauta Niyamawali, 1997. It is in this context that the MDA has obtained possession of 1260 sq. mt. of land out of the disputed plot no. 701 by way of sale deed referred to above.

From a perusal of the records it is seen that the sale deeds were executed by the two petitioner, photo copy of which have been filed as Annexure-7 to the counter affidavit and at page 38 of the counter affidavit as per the Chauhaddi, the land in the north of the plot in question is shown as ceiling land alongwith Gata No.700. Thus it is evident that even so far as the petitioners were concerned it was admitted to them that the land in question had been declared surplus under the Urban Land (Ceiling and Regulation) Act, 1976. The petitioners have not disputed the proceedings of the ceiling case no. 2803/4116 State Vs. Tej Ram nor have they challenged the judgment and order dated 14.1.1981 given in the said case and therefore the said proceedings have become final between the State and the ancestor of the petitioners, namely, Tej Ram.

In pursuance of the order of this Court dated 2.4.2012 the learned standing counsel produced the original records, namely, the Register of Form No. ULC-I and Form ULC-III to allay any doubts with regard to the taking over of possession of the land in dispute. From a perusal of the records it will be seen that the possession of the surplus land was taken on 27.8.1984. Apart from the signatures of the Officers on behalf of the State, the original land holder Tej Ram has also put his thumb impression in proof of taking over of possession of the said land. Apart from the above, on 22.2.1984 proceedings for mutation were initiated with a request to the Tehsildar that the name of Tej Ram may be deleted from the revenue records with regard to the land in dispute. The map was also filed showing the plot in question with the surroundings of the plots and the land stated to be acquired has been shaded in the said map. The records further show that the land in question thereafter was transferred to the MDA on 18.1.1990 by G.O. dated 31.10.1987.

A more interesting aspect that emerges from the perusal of records is that compensation of Rs.28,376.41 in respect of the land in question has also been paid to Shri Tej Ram son of Mewa, the ancestor of the petitioners in terms of Form ULC-V and on the said payment the said Tej Ram has also affixed his thumb impression. Also a sum of Rs. 7176.41 was paid on 23.2.1987 and in receipt of the same Shri Tej Ram has affixed his left thumb impression. Thus the said documents leave not even an iota of doubt that the possession of the land in question was already taken in a due and proper manner by the State as far back as on 27.8.1984 and Shri Tej Ram, the land holder and ancestor of petitioner no. 1 and 2 had also been paid the amount for the vacant land so acquired.

Although from a perusal of the records which have been produced before us it does not appear that the taking of possession was in Form ULC-I or Form ULC-III but the case number has been mentioned, the particulars of the Gata number and date of taking possession of the surplus land have been mentioned, and the area of the land sought to be taken possession of has also been mentioned. This document is in Hindi and fulfils all the requirement as mentioned in Form ULC-I. The Left Thumb Impression of Tej Ram is affixed to the document, as also his name in Hindi. So also the notice under section 10(5) of the Act though not in exactly the same form as given in Form ULC-III nevertheless this document is also in Hindi and contains all the particulars as required in Form ULC-III. In this document also, which is dated 27.8.1984, the case number is mentioned, the date of service of notice under section 10(5) is mentioned. In this document showing the taking over possession, the left thumb impression of Tej Ram alongwith the name of Tej Ram is clearly visible, as also the signatures of witnesses. In the circumstances it cannot be said that the possession of the plot in question has not been taken by the State.

Neither the taking over of possession of the land in question on 27.8.1984, nor the notice dated 12.6.1984 at any point of time in the last 29 years have been disputed or challenged by the petitioners. The petitioners have also not at any stage in so many years disputed the left thumb impression of Tej Ram or even denied that the thumb impression in the original records is not that of Tej Ram.

Learned counsel for the petitioner placed reliance upon a Division Bench decision of this Court reported in 2010 (7) ADJ 488 (DB) Ram Chandra Pandey Vs. State of U.P. and others with particular reference to paragraph 17 of the said judgement. The submission is that unless possession is taken in the manner as provided under the U.P. Urban Land Ceiling (Taking of Possession, Payment of account and Allied Matters) Directions 1983, namely, entries in Column 9 of Form No. ULC-I and Form No. ULC-III, it cannot be said that possession has been taken in law. However the findings of the fact recorded by the Division Bench in para 31 of the said judgement are as follows:-

"31. In the background of the facts of this case and the submissions made by the learned counsel for the parties as well as on perusal of the record produced by the learned Standing Counsel, especially the document by which possession of the land is said to have been taken from the grand-father of the petitioner late, Dhani Ram, we are not satisfied that actual physical possession of the plots in question was ever taken by the State Government. From the record, we find that the memo of possession prepared in the present case is nothing but a mere noting of three officials of the State Government made on 2.4.1992, which is also not on the proper format and appears to have been prepared by the State officials in their office, and as such no authenticity can be attached to the same. On such memorandum, there is no signature of the grand-father of the petitioner (late Dhani Ram) or any independent person to show that actual physical possession had been delivered to the State Government. More so, the name of late Dhani Ram continued in the revenue record till his death in the year 1995 and thereafter the name of the petitioner was admittedly recorded in the Khasra and Khatauni in the year 1996, which continued so till the passing of the ex- parte order in 2004, where after also the land revenue was being accepted from the petitioner."

Reliance has also been placed on a Division Bench decision of this Court in Writ C No. 23430 of 2010, Chandrama Vs. State of U.P. of which one of us (Sunil Ambwani, J) was a member. However, as we have already noted hereinabove from perusal of the original records produced before us by the learned standing counsel possession has been taken from Tej Ram, the land holder/tenure holder of the surplus land of plot no. 701 and plot no. 786 in the same manner as provided in Form No.ULC No. -I and ULC-III. Merely because the exact format of the Form ULC-I and ULC-III have not been reproduced would not vitiate the taking of possession by the State Government. The original records distinctly depict the left thumb impression of Tej Ram on the format showing particulars of the village, Gata No. 786 and 701 as well as the area declared surplus including the reference of case no. 2803/4116 in the possession memo (Dakhalnama) dated 27.8.1984. The thumb impression of Tej Ram tenure holder has also been affidavit in the presence of witnesses and the signatures of the authorities of the State Government are also present on the possession memo. Moreover, payment of amount by way of compensation for the surplus land as contemplated under section 11 of the U.P. Urban Land (Ceiling and Regulation) Act, 1976 has also been paid to Shri Tej Ram on 16.1.1981 under the clear left thumb impression endorsement and therefore, it cannot, at this distance of time, be said that possession has not been taken. In the circumstances, the two decisions relied on by the learned counsel for the petitioners would be of no assistance to them in the facts of the present case.

On behalf of the respondents reliance has been placed upon the two decisions of the Supreme Court reported in (1996) 8 SCC 259 (para 9 and 11) Tamilnadu Housing Board Vs. A. Viswas. Paragraph 9 and 11 of the said judgment reads as under:

"9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchnama by the LAO in the presence of witnesses winged by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land.

10. ...................................................

11. From the facts in this case, it would be clear that possession must have been taken of the land consisting of 339 acres including 1.33 acres in survey No. 140/4. It is seen that when the land was acquired for planned development of the city and a large chunk of buildings has already been built up and the land admeasuring about 1 acre 32 cents has been set apart for park purpose, obviously along with other lands, the disputed land was taken possession and construction was made as per plans. Would it be possible for the appellant, without delivery of possession to the Housing Board, to construct such massive constructions and leave out only this part of the land bearing survey No.140/4 which was set a part for public purpose, namely, public amenity of part? The making of the plan would emerge only after the land is taken possession and demarcation thereof is made and constructions are carried out. It is erroneous to believe that possession still remained with the respondents and the LAO had not taken possession only of this piece of land. It is not the case of the respondent that he resisted taking possession of the land by LAO and thereafter the LAO took no action to have him dispossessed. The single Judge has not adverted to these material facts and the circumstantial evidence available from the established facts. He proceeded to consider on the premise that since the acquired land was not used for building purpose and possession was not taken, acquisition stood lapsed. Equally erroneous is the reasoning given by the District Judge. The High Court is wholly illegal in its conclusion. The District Judge proceeded on the premises that the revenue records do not show the name of the appellant mutated and the land was not registered in the name of the appellant. These circumstances are wholly illegal and unjustified. Section 12 [3] of the Act itself exempts registration of the land acquired under the Act. The District Judge had obviously ignored the statutory provisions. It was unnecessary for the Housing Board to have the lands mutated in the revenue records and have its name entered therein. It was not for its purpose. It was for public purpose, i.e., for construction of the houses and allotment thereof to the needy persons. After the construction of the houses, the public park stood vested in the acquisition. Obviously, at this stage the Municipality would have come to take possession exercising its jurisdiction when illegal encroachment was found on the land. At this stage, notice was given to the respondents and the respondents filed the suit for perpetual injunction."

The next judgment relied upon by the learned counsel for the respondents is reported in (2011) 5 SCC 394 (Para 37) Banda Development Authority Vs. Moti Lal Agarwal. Pargarph 37 of the said judgment reads as under:

"37. The principles which can be culled out from the abovenoted judgments are:

(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.

(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.

(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.

(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.

(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken."

Thus from the above legal position settled by the Supreme Court in the two cases, referred to hereinabove, and of the Division Bench of this Court in the case of Ram Chandra Pandey (Supra) in the facts of the present case, there is absolutely no doubt that possession had been duly and formally taken from the land holder/tenure holder Tej Ram in the presence of witnesses in the format as required by Form ULC-I and ULC-III and merely because Form ULC-I and ULC-III had not been mentioned or specific reference made thereto would not deflect from the unshakeable inference that possession has been taken nor would it imply that the petitioners could, therefore, be said to be continuing in possession over the plots in question.

Moreover, as we have already noted above, after possession was taken from Tej Ram proceedings for mutation of the name and removing out the name of Tej Ram had also been taken up with the Tehsildar, Moradabad and the name of Tej Ram had been removed from the plots in question. The petitioners as well as Shri Om Prakash sons of Tej Ram as well as Shri Tara son of Chiranji (son of Tej Ram) had sold their shares of the land in question of plot no. 701 to MDA through sale deeds. In the Chauhaddi of one of the sale deeds of the present petitioners, the land in the north is clearly shown as ceiling land. Thus even when the sale deed was executed by the two petitioners in favour of MDA on 7.10.2009 it was quite well known to them that a part of the land of plot no. 701 had been declared surplus under ceiling proceedings and, therefore, the petitioners cannot now at this stage claim to be in possession over the plots which have already been taken possession of by the State Government under ceiling proceedings merely on the basis of some entry in the Fasli 1417 corresponding to the year 2010.

In view of our findings on the question of fact recorded on the basis of the original documents produced by the respondents before us and documents on record and the law laid down by the Division Bench of this Court as well as of the Supreme Court, we cannot bring ourselves to hold that the petitioners are still in possession over the land in question or that they are therefore, entitled to the benefit of section 3 of the Repeal Act, 1999.

Having considered the matter in all its ramifications we find no merit in the writ petition and the same is accordingly dismissed.

Order Date :- 1.6.2012

o.k.