Ram Kumar vs State Of U.P. And Others
2015 Latest Caselaw 2839 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

? AFR
 
Court No. - 3
 

 
Case :- WRIT - C No. - 6638 of 2009
 

 
Petitioner :- Ram Kumar
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Atul Kumar Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Krishna Murari, J.

Hon'ble Amar Singh Chauhan, J.

Heard learned counsel for the petitioner and learned Standing Counsel representing the State-respondents.

The case of the petitioner is that though the land in dispute was declared surplus in the hands of his father late Kumman by the competent authority vide exparte order dated 29.07.1983 under the Urban Land (Ceiling and Regulation) Act, 1976 (in short herein-after referred to as the Act 1976), but actual physical possession has not been taken and thus, he would be entitled to the benefit of the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (in short herein-after referred to as 'Repeal Act 1999).

A counter affidavit has been filed on behalf of the State that notice under Section 8 (3) of the Act 1976 was issued to the petitioner but, however, since he did not file any objection, by means of an exparte order dated 18387.87 sq. mtrs. of land was declared surplus. Relevant paragraphs 4 and 6 of the counter affidavit read as under :

"4. That the contents of paragraphs 3 to 7 of the writ petition are not correct as stated, as such, denied. It is stated that the father of the petitioner Sri Kumman has filed statement under Section 6 (1) of Urban Land Ceiling Act before the competent authority which enquired/scrutinized and thereafter under Section 8 (3) of the Act, notice was issued on 10.06.1991 and 18387.87 sq. mtrs. land was proposed to be declared surplus land and after fixing the date, the notice for hearing was issued which was served upon the petitioner personally. Inspite of serving of notice the petitioner has not appeared before the court concerned on the date fixed nor submitted any objection, thereafter on 29.07.1983 an order under Section 8 (40) of the Act was passed declaring 18387.87 sq. meters land as surplus. It is further stated that the declared surplus land has already been entered in the name of State Government vide order dated 12.12.95 and notices has been served to the tenure holder under Section 10 (50) on 28.11.87 upon the wife of the tenure holder Smt. Kausaliya and the aforesaid surplus land has already been transferred to the Allahabad Development Authority, Allahabad on 15.1.90 according to the Rules, Regulation and Act. The photostat copy of the possession letter is being filed herewith as Annexure CA '1' to this counter affidavit. It is relevant to mention here that the aforesaid processing has already been completed prior the enforcement of Repeat Act, 1999. It is wrong to say that the said order dated 29.07.83 is wrong and exparte order."

"6.That the contents of paragraph 13 of the writ petition are not correct, as stated, as such, denied. It is stated that on the aforesaid surplus land the possession has already been taken by the competent authority and the name of the State Government has already been recorded in revenue record prior to implementation of Repeal Act, 1999, as such, the petitioner has no right and title over the aforesaid surplus land and the case cited in paragraph under reply is different to the case of the petitioner, as such, the petitioner is not entitled to get benefit of aforesaid judgment passed by this Hon'ble Court. It is further stated that against the judgment and order dated 17.03.2005 passed in Civil Misc. Writ Petition No. 6354/03 Chavi Nath Vs. State of U. P. and others, Special appeal has already been filed before the Hon'ble Supreme Court."

When the matter was heard by us on 31.08.2015 finding that counter affidavit filed by the State-respondents is very sketchy without making any specific averments about the date of actual taking over possession annexing only the  notice under Section 10 (5) of the Act 1976 issued in the name of the father of the petitioner containing endorsement made by some representative of the Allahabad Development Authority to have taken over possession on 15.01.1990, we required the learned Standing Counsel to produce the original record and fixed 7th September, 2015. The matter was finally heard today and the original record was also produced by the learned Standing Counsel which has been perused by us.

A perusal of the record goes to show that notice in the name of the father of the petitioner under Section 10 (5) is on record and it was served on Smt. Kausaliya, mother of the petitioner, (wife of recorded tenure holder Kumman) on  28.11.1987. The notice also contains endorsement on behalf of some representative of the Allahabad Development Authority dated 15.01.1990 that he has taken possession on behalf of the Secretary of the Development Authority from the ceiling authorities. There is no possession memo or any other documents including Form ULC-III which contains a record of the date of taking over possession. Form ULC-III is to be maintained in accordance with the U. P. Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directors, 1983 issued by the State Government in exercise of the power conferred under Section 35 of the Act, 1976.

In the absence of possession memo  and Form No. ULC-III on the record, the only presumption which can be drawn is that though the land was declared  surplus but actual physical possession of the said land was never taken over by the State. Normal mode of taking over possession is possession memo in the presence of witnesses and taking possession thereof. The Hon'ble Apex Court in the case of Balmokand Khatri Educational and Industrial Trust v. State of Punjab, AIR 1996 SC 1239 has held that the normal mode of taking possession is drafting a 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.

In Sita Ram Bhandar Society v. Government of N.C.T. of Delhi, (2009) 10 SCC 501 and Omprakash Verma v. State of A.P., (2010) 13 SCC 158, the Apex Court has observed that when possession is to be taken of large tract of land then it is permissible to take possession by a properly executed panchnama.

From the aforesaid law laid down by the Hon'ble Apex Court, it is clear  that possession of a land can only be taken by the State through executing a panchnama (possession memo) or some such document  evidencing taking over of possession.

In the absence of possession memo or any other documentary evidence, a presumption cannot be drawn that by mere vesting, possession has been transferred in favour of the State. The expression "possession" used in Repeal Act, 1999 has been interpreted to mean "actual physical possession" of the surplus land and not just possession contemplated with the vesting of excess land in terms of Section 10(3) of the Act, 1976.

In the case of State of U.P. v. Hari Ram, [JT 2013(4) SC 275; 2013(4) SCC 280], the question for consideration before the Apex Court was whether deemed vesting of surplus land under Section 10(3) of the Act, 1976 would amount taking over de facto possession depriving the landholders to the benefit of the saving clause under sub-section (3) of the Repal Act. The Apex Court after dealing with the fact held that mere vesting of land under sub-section (3) of Section would not confer any right on the State Government to have de facto possession of the vacant land unless there is  a voluntary surrender of vacant land or forceful possessio before 18.3.1999 or forceful possession under Section 10(6) of the Act, 1976.

The same issue has been reaffirmed by the Apex court in the case of Gajanan Kamlya Patil v. Addl. Collector & Comp. Auth. & Ors., reported in JT 2014(3) SC 211.

In a recent decison in the case of State of Assam v. Bhaskar Jyoti Sarma, reported in (2015) 5 SCC 321. It has been observed in paragraph 11 as under :

"11.  Section 3 of the Repeal Act postulates that vesting any vacant land under Sub-section (3) of Section 10, is subject to the condition that possession thereof has been taken over by the competent authority or by the State government or any person duly authorised by the State government. The expression "possession" used in Section 3 (supra) has been interpreted to mean "actual physical possession" of the surplus land and not just possession that goes with the vesting of excess land in terms of Section 10(3) of the Act............"

From the facts, discussions, pleadings of the parties and from perusal of the original record, we are satisfied that actual physical possession of the land was never taken by the State Government. There is no material existing on the original record to demonstrate that possession was taken over by the State Government or any person duly authorized by it  or by the competent authority. Once the State Government itself never came in possession over the land in dispute there does not arise any question of transferring possession of the said land in favour of the Allahabad Development Authority. Further mere endorsement on the notice under Section 10 (5) of the Act, 1976 by the official of the Allahabad Development Authority that possession has been taken over, without any material on record to demonstrate that  State  took  over actual physical possession of the land, the endorsement is a mere paper transaction sitting in the office without conferring or transferring any right over the land in dispute.

In the facts and circumstances, the petitioner is entitled to get benefit of the Repeal Act, 1999 and the writ petition deserves to be allowed.

Accordingly, 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 petitioner in the revenue records.

However, there shall be no order as to costs.

Original record has been returned back to the learned Standing Counsel.

Order Date :- 1.10.2015

Dcs