Yasin vs State Of U.P. & Others
2014 Latest Caselaw 690 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Civil Misc. Writ Petition No.13218 of 2008
 

 
Yasin					..........			Petitioner
 
							Versus
 
State of U.P. and others		..........		      Respondents.
 
					        And
 

 
Civil Misc. Writ Petition No.14247 of 2006
 

 
Preetam Singh				..........			Petitioner
 
							Versus
 
The Collector/District		..........		      Respondents.
 
Magistrate Meerut and others
 

 
							And
 
Civil Misc. Writ Petition No.37646 of 2008
 

 
Ram Sajivan				..........			Petitioner
 
							Versus
 
State of U.P. and others		..........		      Respondents.
 
Hon.Tarun Agarwala,J.

Hon. Rajan Roy,J.

(Delivered by Hon.Tarun Agarwala,J.)

These writ petitions are being decided together since a common issue is involved.

In writ petition no. 13218 of 2008, the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred as the Act) declared 13409.16 square meters of land as surplus by an order dated 17.03.1979. Thereafter, the Competent Authority issued a notice dated 27.03.1993 under Section 10(5) of the Act directing the petitioner to hand over the possession of the land to the respondents within 30 days from the date of receipt of the letter failing which forceful possession would be taken.

Against this notice, the petitioner filed an appeal under Section 33 of the Act before the District Judge, in which an interim order dated 26.04.1994 was passed staying the delivery of possession of the surplus land. During the pendency of the appeal, the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred as the Repeal Act) came into existence, as a result of which the appeal of the petitioner was dismissed as abated by an order dated 30.11.1999. The petitioner contends that in spite of the fact that the land was declared surplus by an order dated 17.03.1979, the petitioner remained in possession till the date of enforcement of the Repeal Act and even thereafter. The petitioner contends that in 2006 he came to know that paper possession was given to the Meerut Development Authority and consequently, filed an application before the Meerut Development Authority as well as before the District Magistrate, Meerut contending that he was entitled to be given the benefit of the Repeal Act since no possession was taken. Since nothing was done, the appellant filed writ petition no. 55111 of 2006, which was disposed of by an order dated 05.10.2006 directing the petitioner to make a fresh detailed representation, which would be decided by the District Magistrate. Accordingly, a detailed representation was filed, which was considered and rejected by the District Magistrate by an order dated 02.01.2008. The petitioner, being aggrieved, filed the present writ petition praying for writ of mandamus directing the Tehsildar to reverse the entries in the revenue records and incorporate the name of the petitioner, as per the original entries and further prayed for a writ of mandamus commanding the respondents not to dispossess the petitioner.

A counter affidavit has been filed by the respondent nos. 1, 2 and 4 indicating that pursuant to the notice dated 27.03.1993 issued under Section 10(5) of the Act, possession was taken by the respondents on 02.04.1993 and on 10.07.2003 possession was given to the Meerut Development Authority. The respondents submitted that since possession was taken in 1993, much before the Repeal Act, no benefit under the Repeal Act could be given to the petitioner. In the counter affidavit respondents did not annex any document to show that they had taken possession of the land in question.

The Meerut Development Authority has also filed a counter affidavit indicating therein that the land vested with the State Government immediately after the publication of the notice under Section 10(3) of the Act and that taking of the possession was only a ministerial act, which was subsequently handed over to the Meerut Development Authority on 10.07.2003.

The Writ Court, after hearing the parties, allowed the writ petition by a judgment dated 25.10.2010. The State, being aggrieved by the said judgment, filed Special Leave Petition No. 2626190 of 2011, which was allowed by a judgment dated 04.01.2012. The Supreme Court remitted the matter to the High Court to decide afresh in the light of the fact that the High Court without averting to the pleadings of the appellants (i.e. State of Uttar Pradesh) and the documents produced by them had allowed the writ petition.

Since the counter affidavit filed by the State did not contain any document, the Court passed various orders to bring on record the necessary documents, in spite of which the documents were not brought on record and eventually, the Court directed the respondents to produce the original record, which was produced and the Court has perused the same.

In writ petition no. 14247 of 2006, the Competent Authority by an order dated 30.05.1979 declared 3307.44 square meters of land as surplus. Subsequently, a notice dated 25.10.1993 under Section 10(5) of the Act was issued directing the petitioner to deliver possession within 30 days from the date of receipt of the said notice, failing which forceful possession would be taken. Against the said notice, the petitioner filed an appeal, which was admitted and further proceedings were stayed by the Competent Authority by an order dated 10.11.1993. During the pendency of the appeal, the Repeal Act came into force and, accordingly, the appeal was dismissed as abated. The petitioner contends that he has remained in possession throughout and that no actual or physical possession was ever taken by the respondents. The petitioner has consequently filed present writ petition praying that the name of the Meerut Development Authority should be deleted from the revenue records and that the name of the petitioner should be restored.

The counter affidavit filed by the State reveals that pursuant to the notice dated 25.10.1993, issued under Section 10(5) of the Act, possession of the surplus land was taken on 06.11.1993 and the same was handed over to the Meerut Development Authority on 10.07.2003. The State Government contended that the petitioners are not entitled to the benefits of the Repeal Act inasmuch as possession was taken much earlier by the respondents.

In writ petition no. 37646 of 2008, the Competent Authority declared 9669.23 square meters of the land as surplus by its order dated 31.03.1997. The Competent Authority issued notice under Section 10(5) of the Act on 29.07.1998 directing the petitioner to deliver the possession within 30 days from the date of receipt of the order, failing which forceful possession would be taken. On the same date, the land was mutated in the revenue records in the name of the Kanpur Development Authority. The petitioner upon coming to know about the mutation filed an application before the Competent Authority in the year 1993 and thereafter filed the present writ petition contending that they are still in possession and are sowing the crops over the land in question and, therefore, prayed that a writ of mandamus be issued commanding the respondents not to interfere in their possession of the land in question and that the name of the Kanpur Development Authority be deleted from the revenue records and the name of the petitioner should be substituted.

A counter affidavit has been filed by the State stating that pursuant to the notice under Section 10(5) of the Act dated 29.07.1978, the tehsil staff took possession on 13.02.1999 under Section 10(5) of the Act and thereafter the land was transferred to the Kanpur Development Authority on 13.02.1999. In this petition also, the Court directed the State to produce the original records, which was produced and the Court has perused the same.

At this stage, it would be necessary to mention that the Court noticed the anomalies while perusing the original records. In Writ Petition no. 13218 of 2008, the Court found that the registers so maintained was not in accordance with the UTTAR PRADESH URBAN LAND CEILING (TAKING OF POSSESSION, PAYMENT OF AMOUNT AND ALLIED MATTERS) DIRECTIONS, 1983 (hereinafter referred as Directions of 1983). One of the registers relating to proof of date of possession appeared to have been made recently and was not an old register. The column relating to service of notice under Section 10(5) was blank, namely, that no date of taking possession was mentioned. There are no signatures of the Competent Authority in any of the registers, which is a necessary requirement under the Directions of 1983. The Court also found that a possession memo was prepared in which an endorsement was made that the tenure holder had refused to place his signatures on the possession memo.

In writ petition no. 37646 of 2008, the Court while perusing the original records found that there was no proof of service of notice under Section 10(5) of the Act nor the signature of the Competent Authority was found in the registers. There was also no endorsement of the tenure holder in the possession memo.

In State of Uttar Pradesh Vs. Hari Ram (2013) 4 SCC 280 the Supreme Court held that vesting of the land under sub-section (3) of Section 10 means vesting of the title only and not possession. For facility, paragraph nos. 17, 18 and 31 are extracted hereunder:

"17. Sub-section (2) of Section 10 states that after considering the claims of persons interested in the vacant land, the Competent Authority has to determine the nature and extent of such claims and pass such orders as it might deem fit. Sub-section (3) of Section 10 states that after the publication of the notification under sub-section (1), the Competent Authority has to declare that the excess land referred to in the Notification published under sub-section (1) of Section 10 shall, with effect from such date, as might be prescribed in the declaration, be deemed to have been acquired by the State Government. On publication of a declaration to that effect such land shall be deemed to have been vested absolutely in the State Government, free from all encumbrances, with effect from the date so specified.

Legal fiction

18. The Legislature is competent to create a legal fiction, for the purpose of assuming existence of a fact which does not really exist. Sub-section (3) of Section 10 contained two deeming provisions such as "deemed to have been acquired" and "deemed to have been vested absolutely". Let us first examine the legal consequences of a ''deeming provision'. In interpreting the provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. This Court in Delhi Cloth and General Mills Company Limited v. State of Rajasthan (1996) 2 SCC 449 held that what can be deemed to exist under a legal fiction are facts and not legal consequences which do not flow from the law as it stands.

Voluntary Surrender

31. The ''vesting' in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or deliverin refused g possession. The court in Maharaj Singh v. State of UP and Others (1977) 1 SCC 155, while interpreting Section 117(1) of U.P. Zamindari Abolition and Land Reform Act, 1950 held that ''vesting' is a word of slippery import and has many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The court in Rajendra Kumar v. Kalyan 2008 (8) SCC 99 held as follows: (SCC P.114 para 28)

"28. We do find some contentious substance in the contextual facts, since vesting shall have to be a 'vesting' certain. "To vest", generally means to give a property in. (Per Brett, L.J. Coverdale v. Charlton. Stroud's Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. To 'vest', cannot be termed to be an executory devise. Be it noted however, that 'vested' does not necessarily and always mean 'vest in possession' but includes 'vest in interest' as well."

5. The Supreme Court further went on to hold that the it is mandatory for the State to issue a notice under sub-clause 5 of Section 10 directing the petitioner/land holder to deliver peaceful possession to the State, failing which it was mandatory for the Respondents to take forceful possession under section 10(6) of the Act. The Supreme Court in paragraphs 36 and 37 held as under:-

"Forceful dispossession

36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10. Sub-section (6) of Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under sub- section (5), the Competent Authority may take possession of the vacant land to be given to the State Government and for that purpose, force - as may be necessary - can be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub- section (5), in the event of which the Competent Authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted to only in a situation which falls under sub-section (6) and not under sub-section (5) of Section 10. Sub-sections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice that is "peaceful dispossession" and on failure to surrender or give delivery of possession under Section 10(5), then "forceful dispossession" under sub-section (6) of Section 10.

37.The requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word ''may' has been used therein, the word ''may' in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 11 is that it might result the land holder being dispossessed without notice, therefore, the word ''may' has to be read as ''shall'.

6. The Supreme Court after dealing with the effect of the Repeal Act held that mere vesting of the land under sub clause (3) of Section 10 would not confer a right on the State Government to have de facto possession of vacant land unless there has been a voluntarily surrender of the vacant land before 18.3.1999 or forceful possession of the land under section 10(4) of the Act. The relevant paragraph no.42 is extracted here under:-

"42. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act."

In the light of the aforesaid, the Court has to see as to whether actual physical possession had been taken by the State or not either under Sections 10(5) or 10(6) of the Act. The procedure for taking possession has been provided under the Directions of 1983, which has been issued by the State Government while exercising its power under Section 35 of the Act. Paragraph 3 of the Directions is extracted hereunder:

"3. Procedure for taking possession of vacant land in excess of Ceiling Limit .--(1) The Competent Authority will maintain a register in Form No. ULC -1 for each case regarding which notification under sub-section (3) of section 10 of the Act is published in the gazette.

(2) An order in Form No. ULC-II will be sent to each landholder as prescribed under sub-section (5) of section 10 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No. ULC-1.

(3)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 of the Act, entries will be made in a register in Form ULC-III and also in Column 9 of the Form No. ULC-I. The Competent Authority shall, in token of verification of the entries, put his signature in Column II of Form No. ULC/1 and Column 10 of Form No. ULC-III."

From the aforesaid, it is clear that Competent Authority is required to maintain a register under U.L.C.-I, which is required to indicate the date of notice issued under Section 10(5) of the Act and the date of service of notice as well as the date of taking the possession and the signature of the Competent Authority. Form no. U.L.C.-II is with regard to issuance of notice under Section 10(5). The format indicates that in addition to the notice that had to be sent to the tenure holder an intimation is also required to be sent to the Collector with a request to take possession under sub-section (6) of Section 10 of the Act. Form no. U.L.C.-III is a register for the land of which possession has been taken under Sections 10(5) or 10(6) of the Act. The Competent Authority is also required to place his signature endorsing the date of taking possession.

In the light of the aforesaid, from a perusal of the counter affidavits and the original records, the stand of the respondents is that pursuant to a notice under Section 10(5) of the Act possession was also taken thereafter under Section 10(5) of the Act. The respondents' case is not that they had taken forceful possession under Section 10(6). Consequently, the respondents are required to show that the petitioner had given voluntary possession. The respondents have failed to show that they have taken voluntary possession either in the counter affidavit nor the same is reflected in the original records. No proof of voluntary surrender by the tenure holder is on the record. On the other hand, the possession memo in the case of the petitioner in writ petition no. 13218 of 2008 indicates that the petitioner has refused to endorse his signature on the possession memo. The Court fails to understand that if it was a voluntary surrender by the petitioner, there was no reason why the petitioner would not have placed his signature on the possession memo unless possession was taken forcefully, which in the instant case was not so. The Court further finds that the notice was issued on 27.03.1993 and possession was taken within a week on 02.04.1993 without waiting for the expiry of 30 days. Such action is void and a nullity. The Court also found that the registers maintained by the respondents are not in accordance with the Directions of 1983 and that some of the registers were prepared recently, as it is clear from the naked eye. Further, the Court finds that the petitioners have filed the Khatauni for the Fasli 1409-1414, which is equivalent to the year 2000-2005 and Khasra for 1402, which is equivalent to the year 1995 indicating that the petitioners are in possession of the land and are growing crops.

Similarly, the petitioner of writ petition no. 14247 of 2006 has filed copies of the Khasara-Khatauni of 1411 and 1412 which shows that they are in possession. The petitioner in writ petition ho. 37646 of 2008 has also filed copies of the Khasara-Khatauni of 1401-1406 indicating their possession, which has not been disputed by the respondents.

The normal mode of taking possession is drafting a punchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries. Subsequent thereto, the retention of possession would tantamount to be illegal or unlawful possession. This view was held in Balmokand Khatri Educational and Industrial Trust Vs. State of Punjab (AIR 1996 SC 1239), wherein the Supreme Court held:

4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession."

In Sita Ram Bhandar Society Vs. Govt. of NCT of Delhi (2009) 10 SCC 501 and Omprakash Verma Vs. State of A.P(2010) 13 SCC 158 it was held that when possession is to be taken of a large tract of land then it is permissible to take possession by a properly executed panchnama.

In Banda Development Authority Vs. Moti Lal Agarwal (2011) 5 SCC 394 the Supreme Court laid down the following principles as to what act would constitute taking possession of an acquired land, namely:

"(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 present 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."

The same view was reiterated in State of Tamil Nadu Vs. Mahalakshmi Ammal, (AIR 1996 SC 866) and Tamil Nadu Housing Board Vs. A.Vishwam (AIR 1996 SC 3377).

The Supreme Court, in the case of Hari Ram (Supra) has held that actual physical possession is required to be taken by the State Government under Sections 10(5) and 10(6) of the Act, otherwise the benefit of Repeal Act would have to be given to the petitioner.

In the background of the facts and circumstances of the case, upon considering the submissions of the learned counsel for the parties and upon perusal of the original records the principles laid down in the judgment of Banda Development Authority (Supra), we are satisfied that actual physical possession of the land in question was never taken by the State Government. We find that the memo of possession is nothing but a mere noting of the officials of the State Government prepared in their office. No credence can be given to this document. The possession memo does not bear the signature of the petitioners when voluntary possession is alleged to have been taken under Section 10(5) of the Act nor there is anything to indicate that the possession was taken in the presence of any independent person.

In the light of the aforesaid, it is clear that the State Government could not establish that they have taken actual physical possession of the land from the petitioners.

In view of the aforesaid, all the writ petitions are allowed and the writ of mandamus is issued holding that the petitioners are entitled to the benefit of Section 4 of the Repeal Act. The respondents are restrained from interfering in their possession of the land in question. Further, a writ of mandamus is issued directing the respondents to reverse the entries in the revenue records by substituting the name of the petitioners.

Dated: 09th, April, 2014

MAA/-

(Rajan Roy,J.)    (Tarun Agarwala,J.)