Allahabad High Court
Mohammadunisha vs State Of U.P. Thru Secy. And 2 ... on 17 July, 2014
Bench: Krishna Murari, Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Case :- WRIT - C No. - 71268 of 2013
Petitioner :- Mohammadunisha
Respondent :- State Of U.P. Thru Secy. And 2 Others
Counsel for Petitioner :- Raj Karan Yadav
Counsel for Respondent :- C.S.C.
Hon'ble Krishna Murari,J.
Hon'ble Ashwani Kumar Mishra,J.
( By Hon. Ashwani Kumar Mishra, J)
1. The petitioner contends that by virtue of The Urban Land ( Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as the Repeal Act), the proceedings under taken in Case No. 4546 of 1976 State Vs. Mohammad Shareef, pertaining to village Jahangirabad, declaring 15273.89 Sq. Mtrs. land has abated and consequentially petitioner has sought quashing of the order dated 20.11.2008, passed by the District Magistrate, Allahabad rejecting his aforesaid contention and has also sought that the revenue records be corrected in light of the above.
2. The facts, in brief, are that under the provisions of the Urban Land (Ceiling and Regulation)Act, 1976 ( hereinafter referred to as the Principal Act), an order dated 11.1.1982 was passed under Section 8(4) of the Principal Act, declaring 15273.89 Sq. Mtrs. land as surplus. The Collector, in his order under challenge, has recorded that after complying with the requirement of Section 10 (1) and 10 (3) of the Principal Act, a notice under Section 10 (5) was issued to the tenure holder on 24.2.1996. Notices under Section 11(8) of the Act was also stated to have been served on 26.3.1998. The Collector has held that after the land vested in the State by operation of law, the name of the State over the land has also been mutated. The order further records on the strength of a physical verification report that the land in question forming parts of Araji No. 269 (Part) , 279,339 and 344 of village Jahangirabad and plot Nos. 103/1, 110,102/1,102/2,17/1,10/1,11/1 and 36 of village Madhopurhave been illegally encroached upon by raising constructions after the introduction of the Principal Act. The Collector, in view of aforesaid proceeded to reject the representation of the petitioner vide order dated 20.11.2008. The order dated 20.11.2008 itself was passed, in purported compliance of the directions issued by this Court dated 24.2.2005 in Writ Petition No. 10302 of 2005.
3. Petitioner while challenging the aforesaid order and seeking relief of the Repeal Act, has contended that no notice of Section 10(5) of the Act was ever served upon the tenure holder nor the actual physical possession was delivered to the State by the tenure holder, pursuant to the alleged notice under Section 10(5) nor forcible possession under Section 10(6) of Act was taken, either, and therefore, by virtue of the provisions of the Repeal Act, the proceedings under the Principal Act, stood abated and the contrary view taken by the authorities are illegal. Petitioner has also relied upon recent decision of the Supreme Court in the case of State of U.P. Vs. Hari Ram, JT 2013 (4) S.C. 275 and subsequent reiteration of it in Gajanan Kamlya Patil Vs. Additional Collector and Competent Authority and others, J.T. 2014 (3) SC,211. Reliance has also been placed upon the Division Bench judgment of this Court in Writ Petition No. 39530 of 2010 dated 7.4.2014.
4. We have heard Sri Raj Karan Yadav, learned counsel appearing for the petitioner as well as the learned Standing Counsel appearing for the State and have examined the materials available on record.
5. The Principal Act has been repealed in the State of U.P. on 18.3.1999. However, certain acts have been saved. The relevant portion of the saving clause is reproduced hereafter:-
"3. Saving:-
(1)The repeal of the principal Act shall not affect:-
(a) The vesting of any vacant land under sub-section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;
6. Reverting to the facts of the present case, petitioner has contended that neither notices under Section 10(5) were served on the tenure holder nor actual physical possession of the land in question, has never been taken over by the State and thus the petitioner is entitled to the benefit of the repeal act as necessary ingredients of the savings clause are not attracted in the facts of the present case.
7. The Collector, in his order under challenge has, on the basis of the inspection report, found that actual physical possession of the land declared surplus is in unauthorised possession of the tenure holders and constructions have been raised. The Collector was of the view that once the proceedings under Section 10(5) of the Act had been undertaken, the legal and actual possession would be that of State Government and action of taking forcible possession under sub Section 6 of the Act was not required. The State Government, in the Counter Affidavit, has also taken a stand that the land has vested in the State by operation of law.
9. From the materials available on record, it does not transpire that either actual physical possession of the land was delivered to State, pursuant to notice under sub section 5 or forcible possession was taken by the State under sub section 6 of the Principal Act. Rather there is a clear admission of the Collector in the order impugned itself that possession of the land, declared surplus, is not with the State. The recital about unauthorised occupation by the tenure holders clearly suggests continuance of possession with the tenure holders, particularly, in the absence of any record showing delivery of possession to the State Government under sub section 5 or forcible dispossession under sub section 6.
10. True import of the repeal act, in similar circumstances, has been the subject matter of consideration by the Hon'ble Apex Court in the case of State of U.P. Vs. Hari Ram (Supra).After considering the provisions of the Act, following observations has been made therein:
" 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 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".
Similar view has been reiterated in the subsequent decision of the Apex Court in the case of Gajanan Kamlya Patil ( Supra) and has been followed by the Division Bench of this Court in Writ Petition No. 39530 of 2010.
11. In view of the discussions made above, the petitioner is entitled to the benefit of the Repeal Act. Consequently, writ petition succeeds and is allowed. The order impugned dated 20.11.2008, passed by the District Magistrate, Allahabad, is set aside. The proceedings of Case No. 4546 of 1976 ( State Vs. Mohd. Shareef) are declared to have abated and the consequential Act of continuance of possession with the tenure holder, as a consequence follows. Required rectification of the revenue record, restoring the entries of tenure holder or the legal heirs are directed to be carried out after expunging the name of the State Government from the land in question within two months from the date of presentation of certified copy of this this order.
12. No order is, however, passed as to costs.
Order Date :- 17th July, 2014
n.u.
