Allahabad High Court

State Of U.P. Through Competent ... vs Balbir Singh And Anr on 15 September, 2015

Bench: Krishna Murari, Amar Singh Chauhan




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Civil Misc. Writ Petition No. 36390 of 1998
 

 
State of U.P.			-------				Petitioner
 
					Versus
 
Shri Balbir Singh & Anr.	-------				Respondents
 

 
Hon'ble Krishna Murari, J.

Hon'ble Amar Singh Chauhan, J.

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

Heard Shri Vishnu Pratap, learned Standing Counsel for the petitioner and Shri R.C. Singh appearing for the respondents.

This writ petition arises out of proceedings under Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as the '1976 Act').

Facts, in brief, giving rise to the dispute are as under.

A notice under Section 8 (3) of the 1976 Act was issued in the name of the respondents by the competent authority proposing to declare certain area of land as surplus. When no objections were filed, the competent authority vide order dated 03.07.1982 confirmed the draft statement. Notification under Section 10 (1) of the 1976 Act was issued on 25.11.1982, which was published in official Gazette on 09.11.1985. Again since no objections were received under Section 10 (2) of the 1976 Act, a notification under Section 10 (3) was published on 12.02.1986. Thereafter, a notice under Section 10 (5) was issued to the respondents requiring them to surrender possession of the land declared as surplus. At this stage, respondents filed an appeal before the District Judge, which was allowed vide judgment and order dated 09.01.1998 holding that there was no surplus land.

Aggrieved by the same, State of U.P. filed the instant petition. A learned Single Judge vide order dated 11.04.2012 allowed the writ petition and set aside the order dated 09.01.1998 passed by the appellate authority. The respondents filed a review petition alleging that the tenure holder, Balbir Singh died during the pendency of the writ petition and the order passed in writ petition was against a dead person, as legal heirs were not substituted. A learned Single Judge vide order dated 13.11.2014 allowed the review application and restored the writ petition along with the interim order to its original number. An opportunity was given to the petitioner, State of U.P. to implead the legal heirs of the deceased respondent. Thereafter, a counter affidavit was filed by the heirs of the deceased respondent alleging that since the possession of the land was not taken, the proceedings are liable to be abated after enforcement of the Urban Land (Ceiling & Regulation) Repeal Act, 1999 (hereinafter referred to as the 'Act, 1999').

For a better appreciation of the controversy, relevant Sections 2 to 4 of the Act, 1999 are reproduced hereunder.

"2.Repeal of Act 33 of 1976- The Urban Land (Ceiling and Regulation) Act,1976 (hereinafter referred to as the Principal Act ) is hereby repealed.

3.Saving- (1) The repeal of the principal Act shall not affect--

(a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;

(b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary;

2 Where-

(a) any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with respect to such land

then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.

"4. Abatement of legal proceedings : All proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of this Act, before any Court, tribunal or other authority shall abate:

Provided that this section shall not apply to the proceedings relating to Sections 11, 12, 13 and 14 of the Principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf by the Competent Authority."

The first issue which arises for consideration is whether the writ petition would abate in view of Section 4 of the Repeal Act, 1999.

Section 4 of the Repeal Act provides that all proceedings relating to any order made or purported to be made under Principal Act (except for proceedings relating to Sections 11, 12, 13 and 14) pending before any Court, Tribunal or other authority, shall abate. The question is whether proceedings under Article 226 of the Constitution of India can be said to be proceedings relating to any order made or purported to be made under the Principal Act.

It is well settled that writ petition is not a continuation of the original suit or proceedings unlike an appeal or a revision. A writ petition under Article 226 of the Constitution of India are proceedings quite independent of the original controversy. The writ proceeding under Article 226 of the Constitution of India is not a continuation of suit or proceedings giving rise to it and their exists a clear distinction between an appeal or revision and a writ petition directed against orders passed therein. The Hon'ble Apex Court in the case of Ahmedabad Manufacturing & Calico Printing Co. Ltd. Vs. Ramtahel Remanand, 1972 AIR 1598, has observed as under.

"A decision in a writ petition is not a decision about the merits of the rights of the parties in issue in the proceedings giving rise to it."

Writ petition being not a continuation of original proceedings unlike an appeal or revision, the order passed in such proceedings or in an appeal or revision arising therefrom, therefore do not merge in the orders passed in writ petition. Thus, a proceeding under Article 226 of the Constitution of India cannot be held to be a proceeding relating to any order made or purported to be made under the Principal Act so as to result in its abatement under Section 4 of the Repeal Act.

The view taken by us finds support from a Full Bench decision of this Court in the case of Udai Bhan Singh & Ors. Vs. Board of Revenue & Ors., AIR 1974 All 202. The Full Bench was considering the import of Section 5 (2) (a) of U.P. Consolidation of Holdings Act providing for abatement of every proceeding for correction of records and every suit and proceeding in respect of declaration of rights or interest in any land in respect whereof a notification for consolidation operations has been issued under Section 4 (2) (1). It was held that Section 5 (2) (a) has no impact on writ petitions or Special Appeals arising out of them in which judgements and orders passed in suits or proceeding relating to declaration of rights in land covered by a notification under Section 4 are in challenge and they will remain unaffected by the provision.

The power of judicial review being a vital principle of our Constitution, it cannot be abbrogated without affecting the basic structure of the Constitution. Therefore, as far as the existence of power is concerned, it cannot be doubted that the power of High Court under Article 226 and that of the Hon'ble Apex Court under Article 32 of the Constitution, cannot be abridged, abbrogated or diluted, even by the amendment of the Constitution, neither the power can be taken away by judicial pronouncements, nor by Legislative enactment or even by the amendment in the Constitution.

The aforesaid being the settled proposition of law, writ petition arising out of proceedings under the 1976 Act shall not abate in view of Section 4 of the Repeal Act, 1999.

Having come to the conclusion that the writ petition is not liable to be abated in view of Section 4 of the Repeal Act, 1999, we now proceed to consider the effect of the Repeal Act, 1999 on the rights of the parties. In other words, whether a decision on merits is warranted in the present case, in view of the provisions of the Repeal Act, 1999, vis-a-vis, the facts of the case.

A bare reading of the provisions of Repeal Act, 1999 makes it clear that it does not effect the vesting of any acquired land under sub-Section (3) of Section 10, possession whereof, has been taken by the State Government or any person duly authorised by the State Government in that behalf or by the competent authority. In other words, in case, the possession of the land has not been taken before the date of enforcement of the Repeal Act, 1999, even if the land has been vested in the State Government under Section 10 (3) of the 1976 Act, the same shall be liable to be restored by refund of the amount to the State Government by the tenure holder, if any paid to him.

In case, possession has been taken, since the repeal of the Principal Act does not effect such cases, any writ petition pending challenging the order passed in proceedings under the 1976 Act, will have to be decided on merits. However, the cases where the State Government or duly authorised person on its behalf of competent authority has not taken possession since the proceedings under the Act of 1976 shall abate, any petition pending before this Court challenging any order arising out of said proceedings shall be rendered infructuous. The simple reason for this is that the State Government in view of Repealing Act can neither take proceedings for vesting of the land, nor take possession and, thus, it becomes unnecessary to decide petitions on merits in such an eventuality.

In the case in hand, it is undisputed that the proceedings for declaration of surplus land in the hands of the respondent-tenure holder were finalised after publication of notification under Section 10 (3) of the 1976 Act on 12.02.1986 and the land came to be vested in the State Government. It is equally undisputed that a notice under Section 10 (5) of the 1976 Act was issued to the respondents requiring them to surrender possession of the land declared as surplus.

Equally undisputed is the fact that the time barred appeal was filed by the respondents-tenure holder, which was allowed by the District Judge vide order dated 09.01.1998 holding that there was no surplus land. It is this order, which is under challenge in the present writ petition filed by the State of U.P.

Thus, the fate of this writ petition would depend upon answer to the question whether the State Government has taken over possession of the land declared surplus prior to enforcement of the Repeal Act, 1999 w.e.f. 18th March, 1999 or not.

We now proceed to consider the aforesaid question in the light of the facts pleaded by the parties and the law settled by various judicial pronouncements.

Petitioner, State claims to have taken over possession of the surplus land on 29.09.1993. This assertion has been made for the first time in the counter affidavit filed on behalf of the petitioner-State to the application filed on behalf of respondents to recall the order dated 11.04.2012. This claim was made entirely on the basis of a possession certificate dated 20.09.1993 filed as Annexure CA 1 to the counter affidavit. A perusal of the said document goes to show that it does not bear the signature of the person handing over possession, rather an endorsement has been made that he has refused to sign. The document bears illegible signature of the person taking over possession. It also does not bear the seal of the officer, who is alleged to have taken possession. The document also bears signature of witnesses, namely, Chandra Bhan and Tilak Ram without mentioning any of their details. Another significant fact to be taken note of is that in the endorsement where the person giving possession has refused to sign, mentions the date 18.09.1993, whereas the signature of person taking over possession bears the date 20.09.1993. The answering respondents, in their reply to the counter affidavit of the State to the recall application, have categorically denied the fact that any possession was taken.

It may be relevant to quote paragraph 13 of the rejoinder affidavit, which reads as under.

"13. That it is categorically stated that State Government does not taken de facto possession. The answering respondents had not surrender possession to the State as provided under Section 10 (5) of the Ceiling Act. The State also had not taken forceful possession. The alleged 'Dakhaldihani' is false."

The expression 'possession' has been interpreted to mean actual physical possession of the surplus land and not just possession contemplated with the vesting of the excess land in terms of Section 10 (3) of the Act, 1999, i.e., de jure possession.

In the case of Babu Chand Vs. State of U.P., [2009 (75) ALR 873], a Division Bench of this Court has held as under.

"Possession on paper is a symbolic possession and word "possession" used in clause (a) of sub-section (2) of Section 3 of the Act means actual physical possession and not the symbolic possession."

In the case of Ram Singh & Ors. Vs. State of U.P., [2013 (7) ADJ 662], while considering the effect of Repeal Act, 1999, it has been observed as under.

"It is clear that mere vesting of land declared surplus under the Act without resuming de facto possession, is of no consequence and the landholder shall be entitled to the benefit of the Repeal Act."

Same view has been taken by different Division Benches of this Court. Reference may be made to the following decisions.

Babu Chand Vs. State of U.P., [2009 (75) ALR 873]; Ram Chandra Pandey Vs. State of U.P. & Ors., 2010 (82) ALR 136.

The same view has been taken by the Apex Court in the case of State of U.P. Vs. Hari Ram [JT 2013 (4) SC 275: 2013 (4) SCC 280]. The question for consideration before the Apex Court in the said case 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 sub-section (3) of the Repeal Act 1999. The issue was answered by the Apex Court as under:-

"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 delivering refused possession. The Court in Maharaj Singh v. State of U.P. 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, held as follows:

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."

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:

"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'."

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 (6) 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."

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

In a recent decision in the case of State of Assam Vs. 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.........."

Act 1976 does not contain any provision for taking over possession of the surplus land. However, in exercise of powers conferred by Section 35 of the Act 1976, the State Government has issued directions known as "Uttar Pradesh Urban Ceiling (Taking of Possession, Payment of amount and Allied Matters) Directions 1983, which are reproduced herein below :

Directions issued by the State Government under Section 35 of the Act,1976.

In exercise of the powers under Section 35 of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No. 32 of 1976), the Governor is pleased to issue the following directions relating to the powers and duties of the Competent Authorities in respect of the matters connected with the mode of payment of amount referred to in Section 11 of the aforesaid Act to the person or persons entitled thereto:

1.Short title, application and commencement.- These directions may be called the Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983;

(2) The provisions contained in this direction shall be subject to the provisions of any directions or rules or orders issued by the Central Government with such directions or rules or orders.

(3) They shall come into force with effect from the date of publication in the Gazette.

	2. Definition.-- 			..............
 
	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 a 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.

FORM NO. U.L.C I

Serial No.

Serial No. of Register of Receipt. Sl. No. of Register of taking possession

Case number

Date of Notification under Section 10 (3)

Land to be acquired Village/ Mohalla

Area

Date of publication of notification under Section 10(3) in Gazette

Date of notice under Section 10(5)

Date of service of notice

Date of notice/Date of notice

Date of taking over possession

Remarks

Signature of competent authority

FORM NO. U.L.C - II

Notice Order under Section 10(5)

(See Clause (2) of Direction (3)

In the Court of Competent Authority U.L.C...........................................No..................Date................Sri/Smt..........................T/o....................................

In exercise of the powers vested u/s 10(5) of the Urban Land Ceiling and Regulation Act ,1976 (Act No. 33 of 1976), you are hereby informed that vide Notification No. .................. dated ............... under Section 10(1) published in Uttar Pradesh Gazette dated.............following land has vested absolutely in the State free from all encumbrances as a consequence Notification u/s 10(3) published in Uttar Pradesh Gazette, dated.......... Notification No................ dated........................ with effect from.................. You are hereby ordered to surrender or deliver the possession of the land to the Collector of the District authorized in this behalf under Notification No. 324/II/27-U.c. 77 dated February 7,1977, published in the Gazette, dated March 12, 1977, within thirty days from the date of receipt of this order otherwise action under sub-section (6) of Section 10 of the Act will follow.

Description of vacant land

Location

Khasra number identification

Area

Remarks

Competent Authority

...........................................

No. Dated ..........................................

Copy forwarded to the Collector......................with the request that action for immediate taking over of the possession of the above detailed surplus land and its proper maintenance may, kindly be taken and intimation be given to the undersigned along with copy of certificate to verify.

Competent Authority.

........................................

.......................................

FORM NO. U.L.C. III

Serial No.

Case No.

Name of land holder & address

Date of service of notice under Section 10 (5)

Date of taking over possession under Section 10 (5) or under Section 10 (6)

Khasra no. of the land acquired

Area

Zone/Category

Rate

Signature of Competent Authority

NOTE(1) These directions are being issued with the concurrence of Vitta Vibhag vide their G.O. No. FA-1-2012/X-1983, dated December 13, 1983."

A perusal of the aforesaid directions go to show that competent authority is required to maintain a register under ULC-I which requires to indicate date of notice under Section 10 (5) of the Act 1976, date of service of notice as well as the date of taking possession and the signature of the competent authority. Form No. ULC-II is with respect to format of notice to be issued under Section 10 (5) of the Act 1976. The same indicates that it has to be issued under the signature of the competent authority. In addition to the notice which is required to be sent to the tenure holder under the signature of the competent authority and intimation is also required to be sent to the Collector. Form No. ULC -III is a register maintained for record of land of which possession has been taken under Section 10 (5) or 10 (6). The competent authority is required to place the signature in column 10 of the Form in token of verification of entries.

There is nothing on record in the pleadings of the State Government to establish that the procedure prescribed for taking possession of the vacant land in excess of the ceiling limit prescribed under the U.P. Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 was complied. Even the alleged 'dakhalnama' filed by the State Government is not in the prescribed format. Neither any copy of the register under ULC-I, ULC-II and ULC-III has been filed nor any averments have been made in that regard.

The sole reliance placed by the State Government to establish that actual physical possession was taken, is a mere alleged possession memo. The discrepancies in the possession memo has already been noted by us in the earlier part of this judgment. The same does not inspire any confidence and it appears that it was prepared sitting in the office by the officials of the State Government and is merely a paper transaction without there being any actual transfer of the possession. We are, thus, not satisfied that actual physical possession was ever taken by the State Government.

In view of the conclusion arrived at by us that State Government has failed to take possession of the land declared surplus prior to enforcement of Repeal Act, since it cannot now take possession of the said land, it is not necessary to decide this petition on merits and the same is rendered infructuous and, accordingly, stands dismissed, with the observation that State Government will not be entitled to interfere in the possession of the respondents over the land in question.

However, in the facts and circumstances of the case, we do not make any order as to costs.

September 15th, 2015

VKS