Allahabad High Court
Girls High School And College ... vs State Of U.P. And Others on 31 August, 2017
Bench: Tarun Agarwala, Ashok Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
COURT NO.29
Civil Misc. Writ Petition No.3113 of 2009
Girls High School and College and another
Vs
State of U.P. and others
*************
Hon'ble Tarun Agarwala, J.
Hon'ble Ashok Kumar, J.
(Per: Tarun Agarwala, J.)
We have heard Sri A.D. Saunders, learned counsel for the petitioners and Sri B.K.Ojha, learned counsel for the Allahabad Development Authority and the learned standing counsel for the District Magistrate and other State authorities.
The petitioners have filed the present writ petition praying for the quashing of the order dated 12.12.2008 passed by the District Magistrate rejecting the representation of the petitioners. The petitioners have also prayed for the quashing of the notice dated 7.3.2000 published in the Hindi newspaper "Amar Ujala" issued the Allahabad Development Authority and the District Magistrate inviting applications by tender/auction for sale of surplus land of the petitioners. The petitioners have also prayed that a mandamus be issued commanding the respondents not to interfere in the peaceful possession of the petitioners over the land in question.
The facts leading to the filing of the present writ petition is, that the petitioner no.1 is a minority educational institution, which is in existence for more than 125 years. Petitioner no.2 is the Secretary of the petitioner no.1 institution. The institution is catering to the education of girls from Nursery to Class-12. At present, more than 4000 students are studying in the institution. The institution not only has class rooms, but there is a girls hostel as well as a residence for the Principal, staff quarters, auditorium, laboratories, library, outdoor sports facilities like basketball court, swimming pool and other playing facilities.
A lease deed dated 1.9.1912, measuring approximate 3 acres being plot no.51 was executed in favour of the petitioners by the Secretary of the State for India and Council. Another lease of 3 acres was executed on the same date being plot no.23. Both the plots are bounded as one plot and the consolidated plot is now known as 25 Elgin Road.
It transpires that proceedings were initiated under the Urban Land (Ceiling and Regulation) Act ,1976 (hereinafter referred to as the Act) and a notice dated 15.5.1980 was issued. Objections were filed by the petitioners and thereafter the competent authority passed an order dated 5.2.1987 declaring 17617.98 square metres as surplus land. Subsequently a notice under Section 10(5) of the Act was issued directing the petitioners to surrender the surplus land. Since the notice was refused by the petitioners the said notice was affixed on 18.7.1991. Subsequently the impugned notice dated 7.3.2000 was published in the newspaper inviting tenders from interested parties for sale of the surplus land.
On 22.3.1999, Urban Land (Ceiling and Regulations) Repeal Act, 1999 was promulgated (hereinafter referred to as the 'Repeal Act'). Section 3 of the said Repeal Act is reproduced here under:-
"3. Savings- (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 by 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;
(c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20.
(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 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 restored unless the amount paid, if any, has been refunded to the State Government."
The said Repeal Act was adopted by the State of Uttar Pradesh, which became effective from 18.3.1989. In view of the Repeal Act, the petitioners contended that inviting tenders for sale of the surplus land was wholly illegal, inasmuch as, physical possession of the land continued with the petitioners and, at no moment of time, the possession of the surplus land was ever taken by the State Government or by its agencies or by the Allahabad Development Authority. The petitioners contended that in view of the Repeal Act all proceedings came to an end and since physical possession of the surplus land was never taken by the authorities, the question of sale of the surplus land at this stage after the Repeal Act could not arise.
The petitioners, being aggrieved by the issuance of the notice, filed Writ Petition No.13428 of 2000, which was disposed of by an order of the Court dated 2.7.2008 directing the petitioners to make a representation. Based on the said order, the petitioners made a representation, which was rejected by the District Magistrate by an order dated 12.12.2008 holding that since proceedings under Section 10(5) of the Act had been initiated, there was no need to take physical possession and that possession was deemed to have been taken by the State. The petitioners, being aggrieved, have filed the present writ petition.
The counter affidavits filed by the District Magistrate as well as by the Allahabad Development Authority admit that notice under Section 10(5) of the Act was initiated and that the petitioners refused to accept the notice and, therefore, contended that possession was deemed to have been taken. The respondents admit that no such steps were taken to take physical possession under Section 10(6) of the Act.
In the light of the aforesaid, we find that this issue with regard to deemed possession or physical possession has now been settled by a series of judgments of this Court as well as by the Supreme Court.
In State of Uttar Pradesh Vs. Hari Ram (2013) 4 SCC 280 the Supreme Court held that vesting of the land under sub-section (3) of Section 10 means vesting of the title only and not possession. For facility, paragraph nos. 17, 18 and 31 are extracted hereunder:
"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 UP 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 2008 (8) SCC 99 held as follows: (SCC P.114 para 28).
"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."
5. 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:-
"Forceful dispossession
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''.
6. 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(4) 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."
In the light of the aforesaid, the Court has to see as to whether actual physical possession had been taken by the State or not either under Sections 10(5) or 10(6) of the Act. The procedure for taking possession has been provided under the Directions of 1983, which has been issued by the State Government while exercising its power under Section 35 of the Act. Paragraph 3 of the Directions is extracted hereunder:
"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 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."
From the aforesaid, it is clear that the Competent Authority is required to maintain a register under U.L.C.-I, which is required to indicate the date of notice issued under Section 10(5) of the Act and the date of service of notice as well as the date of taking the possession and the signature of the Competent Authority. Form no. U.L.C.-II is with regard to issuance of notice under Section 10(5). The format indicates that in addition to the notice that had to be sent to the tenure holder an intimation is also required to be sent to the Collector with a request to take possession under sub-section (6) of Section 10 of the Act. Form no. U.L.C.-III is a register for the land of which possession has been taken under Sections 10(5) or 10(6) of the Act. The Competent Authority is also required to place his signature endorsing the date of taking possession.
In the light of the aforesaid, from a perusal of the counter affidavits, the stand of the respondents is, that pursuant to a notice under Section 10(5) of the Act deemed possession has been taken. In our opinion, deemed possession is not sufficient. Either voluntary possession of the land is handed over by the petitioners under Section 10(5) of the Act or actual physical possession is taken under Section 10(6) of the Act, which in the instant case has not been done.
In Raghuveer Singh Sherawat vs. State of Haryana vs. State of Haryana and others, AIR 2012 SC 468, the Supreme Court held that symbolic possession will not serve the purpose unless physical possession is taken. Similar view was taken again by the Supreme Court in Shankuntala Yadav and others vs. State of Haryana and others, AIR 2016 SC 1612.
In Yaseen vs. State of U.P. and others, 2014(123)RD 840 a Division Bench of this Court held, that voluntary possession under Section 10(5) of the Act or physical possession under Section 10(6) of the Act is required to be taken by the State Government otherwise the benefit of the Repeal Act would have to be given in favour of the petitioners. Similar view was reiterated in Veer Nagar Sahkari Awas Samiti Ltd. vs. State of U.P. and others, 2016 (5) AWC 5365 and Rashid vs. State of U.P and others, 2017 (2) AWC 1481.
In State of U.P. and another vs. Vinod Kumar Tripathi and others, the Supreme Court by judgment dated 19.1.2016 passed in Special Appeal No.38922 of 2013 held, that in law no possession was taken either by the competent authority or by any authorized person in terms of Section 10(6) of the Act, which was mandatory and, therefore, the benefit has to be given in favour of the tenure holder.
In the light of the aforesaid, it is apparently clear that physical possession of the land was never taken by the authority under Section 10(5) or 10(6) of the Act. The question of deemed possession in the instant case, therefore, does not arise. The petitioners are entitled to be given the benefit of the provisions of the Repeal Act.
For the reasons stated aforesaid, the advertisement dated 7.3.2000 published in the Hindi Dainik "Amar Ujala" putting the surplus land of the petitioners to auction to that extent is quashed. The order of the District Magistrate dated 12.12.2008 rejecting the representation of the petitioner is also quashed.
The writ petition is allowed.
A writ of mandamus is issued commanding the respondents not to interfere in the peaceful possession of the surplus land of the petitioner. Necessary entries in the revenue records should also be corrected by the State Authorities within three months from the date of the production of a certified copy of this order.
Date:- 31.8.2017
AKJ
(Ashok Kumar, J.) (Tarun Agarwala, J.)
