Gopi Ram vs State Of U.P. & Ors.
2015 Latest Caselaw 3014 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved
 
A.F.R.
 
Case :- WRIT - C No. - 29182 of 2010
 
Petitioner :- Gopi Ram
 
Respondent :- State Of U.P. & Ors.
 
Counsel for Petitioner :- Vijay Kumar Rai,Dr. Vinod Kumar Rai,Sri Sankatha Rai
 
Counsel for Respondent :- C.S.C.,K. Zaidi,M.C.Chaturvedi
 

 
Hon'ble Krishna Murari,J.

Hon'ble Amar Singh Chauhan,J.

(Delivered by Hon'ble Krishna Murari, J.)

By means of this petition filed under Article 226 of the Constitution of India, the petitioner has sought the following main reliefs.

"A.  A writ order or direction, in the nature of Mandamus restraining the respondents not to interfere in the peaceful physical possession of the plot no. 307, area 2.231 hectare, situated in village Dahtora, Tehsil & District Agra.

B.  A writ order or direction, in the nature of Mandamus commanding the respondent no. 3, Collector, Agra Division, Agra to delete the name of the State Government from the Revenue record and substitute the name of the petitioner in respect of plot no. 307, Area 2.231 Hects, situated in village Dahtora, Tehsil & District Agra."

The dispute is in respect of an area 2.231 hectare (21196.9454 sq. meter) of plot no. 307 situate in village Dahtora Tehsil & District Agra, which was declared surplus in proceedings under the Urban Land (Ceiling and Regulations) Act, 1976 (hereinafter referred to as the 'Act, 1976'). The reliefs quoted hereinabove are being claimed in the background of the fact that even though an area 21196.9454 sq. meter of plot no. 307 was declared surplus but since the State Government never took actual physical possession of the said land, as such, the petitioner is entitled to the benefit of Section 3 of the Urban Land (Ceiling and Regulations) Repeal Act, 1999 (hereinafter referred to as the 'Repeal Act').

In pursuance of the return submitted by the petitioner, a draft statement under Section 8(3) of the Act, 1976 dated 19.5.1977 was issued to the tenure holder proposing to declare an area 21196.9454 sq. meter of plot no. 307 as surplus. Though the notice was served on 03.06.1977 but no objection was filed. On 05.07.1977 an order was passed under Section 8(4) of the Act, 1976 whereby after exempting an area 1500 sq. meter an area admeasuring 21196.9454 sq. meter was declared surplus. A notification under Section 10(1) of the Act, 1976 was issued on 25.09.1985. Thereafter, a notification under Section 10(3) was issued on 31.5.1993 and was published in official gazette on 31.7.1993. Upon vesting the land in the State Government under Section 10(3), a notice under Section 10(5) was issued on 23.9.1993.

When the authorities started interfering in the possession of the petitioner on the ground that the land in dispute has been mutated in the name of the State Government, the petitioner made various representations and thereafter approached this Court by filing Civil Misc. Writ Petition No. 56146 of 2004. A Division Bench of this Court vide order dated 04.01.2005 disposed of the writ petition giving liberty to the petitioner to make a fresh representation before the respondent no. 1 State with a direction to decide the same within three months by means of a reasoned and speaking order.

The petitioner, in pursuance of the aforesaid order, alleges to have sent the certified copy of the order along with the representation to the respondent no. 1 but no order has been passed thereon. In the meantime, on the basis of a letter written by the Vice Chairman of the Agra Development Authority dated 01.05.2010 to the Superintendent of Police, City, Agra requesting police help for carrying out construction over the land in dispute, the petitioner again approached this Court by filing the instant writ petition.

A counter affidavit has been filed on behalf of the State alleging that a notice under Section 10(5) of the Act, 1976 was sent to the petitioner and the Collector for taking over possession on 23.03.1993 under which the name of the petitioner has been expunged from the revenue record and the land has been recorded in the name of the State Government. In paragraph 8 of the counter affidavit of the State, it has been stated that the petitioner has been dispossessed from the land declared surplus on 13.10.1993 and the name of the State is recorded in the revenue records. A counter has also been filed on behalf of the Agra Development Authority. It is stated in paragraph 4 of the counter affidavit that possession of the aforesaid land was delivered by respondent no. 4 Additional Collector (Administration)Prescribed Authority , Urban Land Ceiling, Agra in favour of the Development Authority on 25.06.2009. A copy of the alleged possession letter dated 25.06.2009 is on record as annexure-1 to the said counter affidavit. In the supplementary counter affidavit dated 08.09.2015, it has been stated that no construction activity has been carried out over the land in question. A perusal of the counter affidavit filed on behalf of the State Government goes to show that categorical averments have been made that notice under Section 10(5) of the Act, 1976 was issued to the tenure holder on 23.09.1993. The counter affidavit is lacking in respect of any averment as to when notice was served and when and in what manner, actual physical possession was taken over. The only allegation is made that the petitioner has been dispossessed from his land with effect from 13.10.1993. The counter affidavit only contains bald allegation without there being any document in support thereof. Along with the counter affidavit, only document filed is order dated 21.3.2007 issued by the Joint Secretary to the Competent Authority, Urban Land Ceiling, Agra informing that in compliance of the order dated 04.01.2005, the representation made by the petitioner was considered and since the land stands vested in the State Government, the same cannot be restored and the petitioner would be entitled for payment of compensation. Even the order passed by State Government does not record that actual physical possession of the land declared surplus was taken. The petitioner by making an amendment application has made a challenge to the said order as well.

When the matter was heard by us on 01.09.2015 finding that the counter affidavit filed on behalf of the State is very cursory and sketchy, in order to satisfy our conscious and to do complete justice between the parties, we required the learned Standing Counsel to produce the original record pertaining to the ceiling proceedings in respect of the petitioner and fixed 16.09.2015. Learned Standing Counsel produced the original record, which has been perused by us. We find that notice under Section 10(5) dated 23.09.1993 issued to the petitioner, which was served on him, is on record. But neither there is  possession memo nor any document to indicate that actual physical possession of the surplus land was taken from the petitioner. A perusal of the original register containing Form No. ULC-III goes to show that entry in respect of the land of the petitioner is contained at Serial no. 2227. Column meant for recording the date of possession is blank. The said register is maintained in accordance with the U.P. Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 issued by the State Government in exercise of the power conferred under section 35 of the Act of 1976.

In the absence of possession memo on the record and the column  in Form No. ULC-III for recording the date on which the possession was taken being left blank, the only presumption which can be drawn is that though the land was declared  surplus but the 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.

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).....................

(iii)....................

(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) ......................"

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 or some 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 stands 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 would amount taking over de facto possession depriving the landholders to the benefit of the saving clause under Section 3 of the Repeal Act. The Apex Court after dealing with the fact held that mere vesting of land under sub-section (3) of Section 10 of the Principal Act 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 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 authorised 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 Agra Development Authority.

The State having failed to demonstrate that actual physical possession of the land declared surplus was taken over at any point of time prior to 18.3.1999 when the Repeal Act came into force in the State of Uttar Pradesh, subsequent alleged transfer in favour of the Agra Development Authority is a mere paper transaction inasmuch as the State Government when itself did not obtain actual physical possession could not have transferred the same.

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 certiorari is issued quashing the impugned order dated 21.3.2007 (annexure-10 to the writ petition).

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.

Order Date :- 8-10-2015

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