Allahabad High Court
Raju vs State Of U.P. Thru Urban Land ... on 13 August, 2015
Bench: Krishna Murari, Amar Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 3
Case :- WRIT - C No. - 58456 of 2008
Petitioner :- Raju
Respondent :- State Of U.P. Thru Urban Land Ceiling And Others
Counsel for Petitioner :- Atul Kumar Srivastava, Neeraj Pandey, Vidya Kant Tripathi
Counsel for Respondent :- C.S.C., Brijendra Kumar Ojha
Hon'ble Krishna Murari, J.
Hon'ble Amar Singh Chauhan, J.
Heard Sri Atul Kumar Srivastava, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Sri B. K. Ojha, learned counsel appearing for Allahabad Development Authority.
Dispute is in respect of plot no. 485, 486, 487/1, 487/2, 489, 491 and 592 situate in village Devarakh Uparhar Pargana Arail, Tehcil Karchhana, District Allahabad. The aforesaid plots were declared surplus in the hands of recorded tenure holder Saiku, grand father of the petitioner, vide order dated 19.12.1979 passed by the U. P. Urban Land (Ceiling and Regulation) Act, 1976,(hereinafter referred to as "Act 1076"), who is alleged to have died on 06.02.1980. Further case set up by the petitioner is that on attaining knowledge of the order dated 19.12.1979, the petitioner made a restoration application in 1997 which was dismissed by the competent authority, against which Appeal no. 26 of 1997 was filed before the District Judge, Allahabad. The said appeal was allowed by the District Judge, Allahabad vide judgment and order dated 22.07.1997 setting aside the order dated 31.01.1997 dismissing the recall application as well as exparte order dated 19.12.1997 and the matter was remanded back to the competent authority to decide the surplus land in the hands of the appellant afresh in accordance with law.
Learned counsel for the petitioner referring to the averments made in the writ petition and the supplementary affidavit contends that thereafter no proceedings were undertaken and after enforcement of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (herein after referred to as Repeal Act, 1999), entire proceedings stood abated by operation of law and thus, the respondents cannot interfere in the peaceful possession of the petitioner over the land in dispute. It is further submitted that once the order declaring the land as surplus was set aside, it was incumbent upon the respondents to initiate fresh proceedings and unless the competent authority determined the surplus area and notification was issued under Section 10 (3) of the Act 1976, vesting the surplus land in State and actual physical possession was taken over by the State by issuing notice under Section 10 (5) or forceful possession under section 10 (6) of the Act 1976 and before the aforesaid proceedings could be undertaken the Repeal Act 1999 was enforced and thus, there is no surplus land over which the State can have any claim.
Facts in this regard are mentioned in the writ petition and supplementary affidavit that no further proceedings were taken after the appellate order dated 22.07.1997 have not been denied in the counter affidavit though averments have been made in the counter affidavit that possession was taken much before the appellate order was passed in pursuance of notice under Section 10 (5) of the Act but no documentary evidence either the notice under Section 10 (5) or possession memo has been filed along with the counter affidavit.
In the absence of any material, the allegations made in the counter affidavit are not worthy of any credence. From the sketchy counter affidavit filed by the respondents without denying the allegations that no further proceedings have been undertaken after remand by the District Judge and without filing any documents to demonstrate that actual physical possession was taken before the remand was made by the appellate court, the case set up by the respondents is not liable to be believed.
Record reveals that impleadment application has been filed on behalf of Prem Kant Dubey and Smt. Jaggi Devi claiming themselves to be purchaser of the land from the petitioner. The dispute involved in this petition is whether the petitioner is entitled to the benefit of the provisions of Repeal Act 1999 as no physical possession was taken by the State before the enforcement of the Repeal Act 1999. Thus, Prem Kand Dubey and Smt. Jaggi Devi claiming impleadment on the basis of some documents transferring the title in their favour are not necessary party to be impleaded hence the impleadment application is rejected. However, it would be open to them to establish their rights on the basis of any documents in their favour in appropriate proceedings before appropriate forum.
In so fa as petitioner is concerned, since the State-Respondent has failed to demonstrate that the land was declared surplus under the provisions of Act 1976 and possession has been taken prior to the enforcement of the Repeal Act 1999, the petitioner is entitled to the benefit of the said Act and in the facts and circumstances, the writ petition deserves to be allowed.
Accordingly, the writ petition succeeds and stands allowed. A writ of mandamus is issued commanding the respondents not to interfere in the actual physical possession of the petitioner over the land in dispute and they are further directed to restore the entry of the name of the tenure holders in the revenue record. There shall be no order as to costs.
Order Date :- 13.8.2015
Dcs
