Brijesh Kumar And 5 Others vs State Of U.P. & Another
2017 Latest Caselaw 7516 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 32				
 
Case :- WRIT - C No. - 3870 of 2012
 
Petitioner :- Brijesh Kumar And 5 Others
 
Respondent :- State Of U.P. & Another
 
Counsel for Petitioner :- Vijay Shanker
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vikram Nath,J.

Hon'ble Salil Kumar Rai,J.

(Dictated by Hon'ble Salil Kumar Rai, J.)

1. Heard learned counsel for the petitioners and learned Standing Counsel representing respondent nos. 1 and 2.

2. The present writ petition has been filed praying for writ of certiorari to set-aside the proceedings in Case No. 576/2585/80-81 (State vs Dallu) as well as writ of mandamus commanding the respondents to abate the proceedings in the aforesaid case instituted under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as, 'Ceiling Act').

3. The facts of the case as stated in the writ petition are that one Dallu son of Mahangi was the bhumidhar of plot Nos. 462, 424, 321, 136, 156, 164, 253, 365, 369, 438, 346, 347, 348 (hereinafter referred to as, 'disputed plots') situated in Village Bishunpur, Tehsil Sadar, District Varanasi. It has been stated in the supplementary affidavit filed on behalf of the petitioners that the said plots have been renumbered as 297, 406, 407 and 411 in the consolidation proceedings held in the village under the Uttar Pradesh Consolidation of Holdings Act, 1953. The aforesaid facts regarding renumbering of the plots have not been controverted by the respondents in their supplementary counter affidavit. It has been further stated in the writ petition that the proceedings were instituted under the Ceiling Act and order dated 20.2.1981 was passed by respondent no. 2 against Dallu declaring 3422.34 sq. meter in the aforesaid plots as surplus land under Section 8 (4) of the Act. It has been stated in the writ petition that no notice was issued to Dallu or the present petitioners under Section 10 (5) of the Act and in any case no notice was served on either of the above persons and no proceedings were instituted by the respondents under Section 10 (6) of the Act for taking forcible possession of the disputed plots. It has been stated that Dallu or the petitioners never voluntarily surrendered possession of the disputed plots and none of the aforesaid persons had withdrawn any compensation under the Ceiling Act in lieu of the disputed plots. It has been further stated in the writ petition that the petitioners are legal heirs of Dallu and are still in actual physical possession of the disputed plots and in support of the said fact the Khatauni of 1416-1421 Fasli and Khasra relating to the disputed plots have been annexed with the writ petition as annexure no. 1 showing that the name of Dallu continued in the revenue records relating to the disputed plots. In view of the aforesaid facts, the petitioners pray that they may be granted the benefit of Sections 3/4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as, 'Repeal Act') as by the relevant date i.e. 18.3.1999, the State Government/respondents had not taken actual physical possession of the disputed plots.

4. In the counter affidavit filed on behalf of respondent nos. 1 and 2, it has been stated that Sri Dallu Ram i.e. the original tenure holder had filed statement under Section 6 of the Ceiling Act and on receipt of the said statement, notice under Section 8 (3) of the Act was issued to him. On the said notice Case No. 576/2585/80-81 (State vs Dallu) was registered under the Act. It has been stated in the counter affidavit that the tenure holder i.e. Sri Dallu Ram did not reply to the aforesaid notice and hence the order dated 20.2.1981 was passed by the Competent Authority under Section 8 (4) of the Act consequent to which final statement under Section 9 was prepared and notifications under Section 10 (3) of the Act were published in the Official Gazette on 12.6.1982 and 13.9.1986 respectively. It has been contended in the counter affidavit and it has been argued by the learned Standing Counsel that after publication of the notification under Section 10 (3) of the Act in the Official Gazette, the disputed plots vested absolutely in the State Government. In the counter affidavit or the supplementary counter affidavit filed on behalf of the State Government, no averment has been made stating that the original tenure holder i.e. Sri Dallu Ram or his heirs were served notice under Section 10 (5) of the Act and they had voluntarily surrendered possession of the disputed plots to the Competent Authority or on the refusal of the tenure holder to voluntarily surrender possession of the disputed plots in favour of the State Government, forcible possession was taken by adopting the procedure prescribed under Section 10 (6) of the Act and no document has been attached with the counter affidavit showing that any steps as aforesaid were ever taken by the respondents. The averment of the petitioners in the writ petition that they have not withdrawn any compensation under the Act has also not been denied by the respondents in the counter affidavit filed on their behalf.

5. It has been argued by the learned counsel for the petitioners that as the tenure holder of the disputed plots i.e. Dallu and subsequently the petitioners are still in physical possession of the disputed plots which would be evident from the revenue records relating to the same and also because it has not been denied by the respondents in their counter affidavit that the tenure holders had never voluntarily surrendered possession of the disputed plots in favour of the respondents or that no proceedings were instituted by the State Government against the petitioners for taking possession of the disputed plots forcibly, therefore, the petitioners are entitled to the benefit of Sections 3/4 of the Repeal Act inasmuch as mere notification under Section 10 (3) of the Act cannot be a sufficient ground for denying the petitioners' benefit of the said provision. In support of their contention, the petitioners have relied on the judgments of this Hon'ble Court in the case of Lallu Singh & Ors. vs State of U.P. & Ors. reported in 2016 (131) RD 3 and in the case of Gopi Ram vs State of U.P. & Ors. reported in 2016 (131) RD 99 as well as the judgment of the Hon'ble Apex Court in the case of State of Uttar Pradesh vs Hari Ram reported in 2013 (4) SCC 280.

6. Controverting the arguments of the learned counsel for the petitioners, the learned Standing Counsel has argued that after notification under Section 10 (3) of the Act the disputed plots vested absolutely in the State Government and therefore, the petitioners are not entitled to the benefit of Sections 3/4 of the Repeal Act.

7. Heard the rival submissions.

8. On the basis of the pleadings of the parties, it is clear that no notice under Section 10 (5) of the Ceiling Act was ever served on the tenure holder and the tenure holder had never voluntarily surrendered the physical possession of the disputed plots to the State Government or any person duly authorized by the State Government in this behalf. On the basis of the pleadings of the parties, it is also clear that no possession was taken by the State Government or the Competent Authority under Section 10 (6) of the Act of the disputed plots and no proceedings were instituted under the aforesaid provision for taking forcible possession of the disputed plots. Further, on the pleadings on record, it is also clear that no compensation relating to the disputed plots has been withdrawn by the tenure holders. It is, thus, clear that the petitioners are in actual physical possession of the disputed plots as Dallu, the original tenure holder, as well the petitioners were never dispossessed from the same and were in possession of the same on 18.3.1999. The aforesaid conclusions have been drawn by the Court on the ground that the facts relating to the aforesaid provisions as stated by the petitioners in their writ petition have not been controverted/denied in the counter affidavit filed on behalf of respondent nos. 1 and 2 and no document has been attached to the counter affidavit showing that either the tenure holder had voluntarily surrendered the disputed plots in favour of the State Government or there was a forcible dispossession under Section 10 (6) of the Ceiling Act or the tenure holders had withdrawn compensation under the Act. It has been merely stated in the counter affidavit and the only argument advanced by the learned Standing Counsel in the present case is that the petitioners are not entitled to the benefit of Sections 3/4 of the Repeal Act as the land vested absolutely in the State Government pursuant to the notification under Section 10 (3) of the Ceiling Act.

9. By virtue of Section 2 of the Repeal Act, the Ceiling Act was repealed and the said Repeal Act came into force in the State of Uttar Pradesh on 18.3.1999. Sections 3 and 4 of the Repeal Act which are necessary for adjudication of the present case are reproduced here-in-below:-

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. Savings.- (1) The repeal of the principal Act shall not effect-

(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;

(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 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 authorised by the State Government in this behalf or by the competent authority.

10. The question that whether the tenure holder can be denied the benefit of Sections 3/4 of the Repeal Act merely because a notification under Section 10 (3) of the Ceiling Act has been issued and published in the Official Gazette even though the tenure holder had never voluntarily surrendered possession of the disputed plots in compliance of the notice issued under Section 10 (5) of the Act to the State Government or any person authorized in this behalf and when even after non-compliance of the notice under Section 10 (5), no proceedings were instituted by the State Government or by the Competent Authority for taking over forcible possession under Section 10 (6) of the Act is no more res-integra. The said question was decided by the Hon'ble Supreme Court in the case of State of Uttar Pradesh vs Hari Ram (supra). In the aforesaid case, the Hon'ble Apex Court while interpreting the phrase "deemed to have been acquired" used in Section 10 (3) of the Ceiling Act held that the said phrase can only mean acquisition of title or acquisition of interests as enumerated under Section 2 (l) of the Act. In the aforesaid case, the Hon'ble Apex Court has also interpreted the phrase "shall be deemed to have vested absolutely in the State Government" as meaning vesting of title absolutely and not possession. In the aforesaid case, the Hon'ble Apex Court has held that under Section 10 (3) only de jure possession vests in the State and not de facto possession and therefore if the tenure holder has not voluntarily surrendered possession under sub-section (3) of Section 10 or in compliance of notice under Section 10 (5) or has not been dispossessed by use of force under Section 10 (6) of the Ceiling Act, it cannot be said that the State Government has taken possession of the vacant land. In paragraph no. 42 of the aforesaid judgment, the Hon'ble Apex Court has held:

"39. 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."

11. In view of the aforesaid judgment of the Hon'ble Apex Court and in view of the fact that the State Government has not produced any document showing that the tenure holder had voluntarily surrendered possession under Section 10 (3) of the Act or had surrendered possession in compliance of a notice issued under Section 10 (5) of the Ceiling Act or they were forcibly dispossessed under Section 10 (6) of the Ceiling Act, we hold that the petitioners are entitled to the benefit of Section 3 of the Repeal Act and in the writ petition the relief as prayed by the petitioners is liable to be granted. In view of the aforesaid circumstances, it is held that the proceedings against the petitioners in relation to the disputed plots under the Ceiling Act have abated and the respondents are not entitled to interfere in the possession of the petitioners over the disputed plots in pursuance to the order dated 20.2.1981 issued under Section 8 (4) of the Act. Consequently, a writ of mandamus is issued commanding the respondents not to interfere in the actual physical possession of the petitioners over the disputed plots on the basis of the order dated 20.2.1981.

12. With the aforesaid directions, the writ petition is allowed.

Order Date :- 1.12.2017

Satyam