Harnam Singh & 3 Others vs State Of U.P. & 2 Others
2017 Latest Caselaw 7320 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 34								A.F.R.
 
Case :- WRIT - C No. - 8436 of 2015
 
Petitioner :- Harnam Singh & 3 Others
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- Devendra Kumar Mishra,R.C. Singh
 
Counsel for Respondent :- C.S.C.,Shivam Yadav
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ajit Kumar,J.

1. Heard Sri R.C. Singh, learned counsel for petitioners, Sri Shivam Yadav, learned counsel for Kanpur Development Authority and Sri M.C. Chaturvedi, learned Addl. Advocate General for State respondents.

2. The instant writ petition has been filed seeking relief in the nature of mandamus directing respondent-State authorities including the Kanpur Development Authority not to interfere with the possession of petitioners over  plot nos. 597, 673, 870 and 594 area 70855.40 square meters situate in Village Bara Sirohi, Pargana and Tehsil Kanpur on the plea that in view of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter to be referred as 'Repeal Act'), the entire ceiling proceedings have stood abated.

3. The contention of petitioners is that since actual possession of land, declared as surplus, has not been taken from petitioners, they would be entitled to the benefit of Repeal Act. It is further contended that the alleged possession memo which is claimed to be a document evidencing factum of delivery of possession in favour of State is forged and manipulated document and does not bear the signatures of their father Ram Singh who was the original tenure holder. The petitioners contend that they continued to be in possession as on the date of enactment of Repeal Act.

4. In order to appreciate the factual controversy about the ceiling proceedings in the instant case and as to whether these proceedings came to their logical end in terms of delivery of possession of the land in favour of the State, it is necessary to refer to the pleadings of the petitioners raised in the writ petition as well as the averments made in the counter affidavit in reply thereof. The relevant paragraphs of the writ petition are 8 to 12, 16 and 22 which are quoted hereunder:

"8. That it appears that the Prescribed Authority, Urban Ceiling issued notice dated 15.01.1986 under section 10(5) of the Act enjoining the petitioners' father Sri Ram Singh to voluntarily surrender the possession of plot i.e. 598, 673, 870 & 594 failing which forceful possession would be taken under section 10(6). Photo/ true copy of the notice dated 15.01.1986 is being filed herewith and marked as Annexure No. 5 to this writ petition.

9. That it is categorically stated that the petitioners' father did not voluntarily surrender the possession of plot nos. 598, 673, 870 & 594 to the Prescribed Authority or Kanpur Development Authority or an officer appointed by them and that the petitioners' father Ram Singh continued in possession and that they are still continuing in possession

10. That the petitioner's father Sri Ram Singh died on 12.12.1996 leaving behind the petitioners as his heirs and legal representatives. Upon death of Sri Ram Singh petitioners came down in possession.

11. That it is categorically stated that petitioners' father neither did surrender the possession nor did respondents take forceful possession, however a memo of possession (Dakhalnama) is said to have been prepared on 16.03.1988. It is also categorically stated that the said memo of possession does not bear the signature of petitioner's father. Petitioners' father was semi literate. He some how make the signature in Hindi he did not know English. The alleged memo of possession does not bear the full particular of the witness. Photo/ true copy of the alleged memo of possession dated 16.03.1988 is being filed herewith and marked as Annexure No. 6 to this writ petition.

12. That in 1418-1423 Fasli Amaldaramad of various orders have been made against Khata No. 2. The said khatauni mentions the plots which have been given to the Kanpur Development Authority under section 117 Ka of U.P. Zamindari Land Abolition Act are recorded in Khata No. 2. It is submitted that against plot Nos. 598, 673, 870 & 594 no amaldaramad of any order is made. To corroborate the said facts, the petitioner brings on record photocopy of the khatauni 1418/1423 Fasli as annexed as Annexure No. 7 to this writ petition.

16. That it is categorically stated that petitioners' father had neither voluntarily surrendered the possession nor had respondents taken forceful possession and that the petitioners' father continued in possession over the land in dispute. Upon death of the petitioners' father on 12.12.1996 the petitioners came down in possession and they are still continuing as such. It is categorically stated that no compensation as provided under section 11 of the Act 1976 was ever paid to the petitioners' father or to the petitioners. Since the petitioners' father and after his death petitioners continued in possession and they are still continuing in possession by virtue of the provision contained under section 3 and 4 of the Repeal Act, 1999, the respondents now can not interfere into peaceful possession of the petitioners over the land in dispute.

22. That actual possession having been not taken under the provisions of Section 10(5) and 10(6) of the 1976 Act, the proceedings will abate under section 3 of the Repeal Act under the provisions of the Act notional compensation (as against market value) becomes payable, as and when land is "deemed vested" in State Government even without resumption of taking physical possession of surplus land. For claiming compensation, taking over of physical possession is not the condition precedent under the Act. Mere mutation of entry in favour of State or other local authority in revenue record is irrelevant/ inconsequential so far as the applicability of the section 3 of the Repeal Act is concerned. Mere vesting of the land declare surplus under the Act without resuming de facto possession is of no consequence and the land holders shall be entitled to the benefit of the Repeal Act.

5. From the pleadings as quoted herein above and as made in the writ petition, four things emerge: first is that it is petitioners' father Ram Singh was exclusively recorded over the land in question as a Bhumidhar; second is that the ceiling proceedings have been initiated in respect of the village in question relating the land of petitioners and statements were prepared; third thing is that notices were issued to the petitioners' father on 15.01.1986 under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter to be referred as 'Act, 1976) but the petitioners' father did not voluntarily surrender his possession; fourth and last aspect of the pleadings is that after notice dated 15.01.1986 issued under Section 10(5) of the Act, 1976, no further notice was issued under Section 10(6) of the said Act and no delivery of possession was taken forcefully from the petitioners' father. Possession Memo (Dakhal Nama) which is claimed to have been taken on 16.03.1988 by District Revenue Authorities, is termed to be forged and fabricated one and it is alleged in the writ petition that this document does not bear the signatures of petitioners' father Ram Singh as the person surrendering the possession of land, inasmuch as, no particulars of witnesses has been given in the possession memo.

6. In counter to the aforesaid pleadings made by the petitioners in writ petition, Sri Ashok Kumar Mishra, Nodal Officer, Urban Land Ceiling, Kanpur has filed counter affidavit on behalf of all the three respondents and the relevant paragraphs of counter affidavit are 13, 14, 15, 16, 17, 19 and 21 are quoted herein under:

"13. That in reply to the contents of paragraph 9 of the writ petition, it is most respectfully submitted that after publication of notification under section 10(3) of the Act was issued on 15.01.1986 to the tenure holder by which he was asked to hand over the possession of the land in question to the officials of District Magistrate. Since the petitioner has not handed over possession of the land in question despite of said notice within prescribed of 30 days and as such under section 10(6) of the Act, the Tehsil official taken possession of the said land on 16.03.1988 and accordingly possession memo/ Dakhalnama was also written. Hence the petitioners could not be treated to be in possession over the land in dispute and if the petitioners are in possession over the said land in any manner then the same is wholly illegal and amounts to illegal encroachment of government land.

14. That in reply to the contents of paragraph 10 of the writ petition, it is most respectfully submitted that the petitioners have not furnished any information regarding death of their father nor they have filed any return under Section 15 of the Act within prescribed period of 90 days in respect of the land inherited/succded by them whereas at that time, Repeal Act of 1999 was not enforced. As such the order passed by this Hon'ble Court dated 15.7.2014 in the case of Savitri Singh Vs. State of U. P. and others, are not applicable in the present case of the petitioners hence it is evident that the petitioners are not in possession over the said land in dispute in any manner and accordingly, the writ petition deserved to be dismissed.

15. That in reply to the contents of paragraph 11 of the writ petition, it is most respectfully submitted that as has been mentioned above that after publication of notification under Section 10 (3) of the Act, a directive notice under Section 10 (5) of the Act was issued on 15.1.1986 to the tenure holder by which he was asked to hand over the possession of the land in question to the officials of District Magistrate. Since, the petitioner has not handed over possession of the land in question despite of the said notice within prescribed of 30 days and as such under Section 10 (6) of the Act, the Tehsil official has taken possession of the said land on 16.3.1988 and accordingly possession memo / Dakhalnama was also written. So far as the names of the witnesses are concerned, their names and designation have been specifically and correctly mentioned in the possession memo. It is further relevant to mention here that in an identical writ petition No. 13186 of 2006, Kanhai Vs. State of U. P. and others, the Hon'ble Court has accepted such type of Dakhalnama and the same has been decided in favour of the State Government, therefore, the present writ petition being identical to that writ petition, is liable to be dismissed. The averments to the contrary are incorrect hence denied.

16. That the contents of paragraph 12 of the writ petition are not admitted and in reply it is submitted that the present case is on different footing than the case as shown in paragraph under reply. Since possession over the land in dispute had already been taken on 16.3.1988, therefore, the name of the petitioners could not be restored over plot Nos. 597, 673, 870 and 594.

17. That the conttents of paragraphs 13 and 14 of the writ petition are not admitted and in reply it is submitted that the tenure holder father of the petitioner, namely, late Ram Singh under Section 6 (1) of the Act has submitted a return No. 7405 in respect of his landed property in the year 1976 upon which a survey was got conducted in accordance with law in which 7855.47 Sq. Mtrs. Alongwith buildings was found in his possession and as such, after giving benefit of 1000 Sq. Mtrs. of building to the tenure holders under Section 4 (1) of the Act, rest of 6855.47 Sq. Mtrs. was proposed to be declared as surplus vacant land under Section 8 (3) of the Act and accordingly, a draft statement alongwith notice under Section 8 (3) was issued to the tenure holder on 28.6.1979 through registered post which was duly served upon the tenure holder on 7.7.1979 and since the tenure holder had not filed any objection within prescribed period of 30 days and as such an order has been passed on 31.12.1979 under Section 8 (4) of the Act by which 6855.47 Sq. Mtrs. land was declared as surplus vacant land, in compliance of which final draft statement alongwith a notice under section 9 of the Act was issued to the tenure holder on 25.3.1980 and thereafter, a notification under Section 10 (1) of the Act was issued for its publication on 15.7.1980 and the same was published in official gazette on 29.8.1981. Thereafter, since no affected/interested persons filed any objection under Section 10 (2) of the Act within prescribed period of time and as such, on 14.9.1981, a notification under section 10 (3) of the Act was issued for its publication which was published in official gazette on 17.7.1982 and since this date, the land in question declared surplus had been vested with the State Government free from all encumbrances. After publication of notification under Section 10 (3) of the Act, a directive notice under Section 10 (5) of the Act was issued on 15.1.1986 to the tenure holder by which he was asked to hand over the possession of the land in question to the officials of District Magistrate. Since the petitioner has not handed over possession of the land in question despite of said notice within prescribed of 30 days and as such under Section 10 (6) of the Act, the Tehsil official taken possession of the said land on 16.3.1988 after making Munadi of the same and accordingly possession memo / Dakhalnama was also written on the same day and by recording name of Urban Ceiling in revenue record the land in had been transferred to the Kanpur Development Authority. Hence, the petitioner is not entitled to get any benefit of Repeal Act of 1999 as possession over the land in question has already been taken much before the enforcement of said Act.

19. That the contents of paragraph 16 of the writ petition are not admitted and in reply it is submitted that after concluding entire proceedings in accordance with law, the tehsil staff had also forcibly taken possession over the land in dispute on 16.3.1988 which is much before the death of tenure holder Ram Singh on 12.12.1996 as well as enforcement of Repeal Act of 1999. It is further submitted that the petitioners have not furnished any information regarding death of their father nor they have filed any return under Section 15 of the Act within prescribed period of 90 days in respect of the land inherited / succeeded by them. Hence the law laid down by the Hon'ble Court in writ petition No. 69503 of 2005, is also applicable in the present of the petitioner in view of which, the present writ petition is liable to be dismissed and accordingly, the petitioners are not entitled to get any benefit of Sections 3 and 4 of the Repeal Act of 1999 as possession over the land in question had already been taken on 16.3.1988 much before the enforcement of Repeal Act of 1999.

21. That the contents of paragraphs 18, 49, 20, 21 and 22 of the writ petition are not admitted and in reply it is submitted that as has been indicated above that after publication of notification under Section 10 (3) of the Act, a directive notice under Section 10 (5) of the Act was issued on 15.1.1986 to the tenure holder by which he was asked to hand over the possession of the land in question to the officials of District Magistrate. Since the petitioner has not handed over possession of the land in question despite of the said notice within prescribed of 30 days and as such, under Section 10 (6) of the Act, the Tehsil official taken possession of the said land on 16.3.1988 after making Munadi of the same and accordingly possession memo / Dakhalnama was also written on the same day and by recording name of Urban Ceiling in revenue record, the land in had been transferred to the Kanpur Development Authority and the relevant amount of used land has also been got deposited from Kanpur Development Authority. Hence, the petitioners are not entitled to get any benefit of Repeal Act and further if the petitioners and if the petitioners are in possession over the said land in any manner then the same is wholly illegal and amounts to illegal encroachment of government land."

7. From the averments quoted herein above as made in counter affidavit, three important aspects of the matter in relation to the effect of Repeal Act, 1999 have emerged: the first is as to whether notification under Section 10(3) which speaks of vesting of land with the State Government free from all encumbrances would amount to absolute vesting of land and any continuance of possession of the tenure holder thereafter would amount to illegal encroachment over the Government land; second as to whether in the absence of notice under Section 10(6) any possession memo could have been prepared; and thirdly what would constitute a possession memo to be a valid possession memo and to what extent it would amount to delivery of actual physical possession. It is noticeable in the instant case that a serious doubt is being raised regarding the signature of person delivering the possession in the possession memo. This Court vide order dated 17.07.2017 had directed District Magistrate, Kanpur to summon original records of the case and to get the signatures examined by the handwriting experts. The order of the court is quoted herein below:

"Counter affidavit has been filed by the State in which possession memo has been filed as Annexure CA-1 which contains signatures of the person who have given possession on 16.03.1988, learned counsel for the petitioner denies the signatures.

The District Magistrate, Kanpur Nagar is directed to summon the original record of the case and he may have the signatures examined by the hand writing expert. He may carry out this exercise within the next three months and thereafter give a report to this Court with regard to hand writing and the signatures.

Copy of this order may be given to learned Standing counsel for necessary communication and compliance within 24 hours free of charges

It may be noted that learned Standing counsel states that possession of the said land was not only taken but also handed over to K.D.A at that very time."

Dated 17.07.2017

8. Since the order was not complied with within the time prescribed for, this Court vide order dated 06.11.2017 directed District Magistrate, Kanpur to file an affidavit of compliance within a week and the matter was posted for 16.11.2017. On 06.11.2017, learned Additional Advocate General Sri M.C. Chaturvedi appeared and sought a day's time and this is how the matter had come up on 07.11.2017. On 07.11.2017 again time was sought to comply with the order and now when the case is taken up today on 27.11.2017, a compliance affidavit has been filed by Sri Surendra Singh, District Magistrate, Kanpur Nagar who is also present in the Court. Along with compliance affidavit, a letter dated 09.11.2017 has been annexed by which District Magistrate, Kanpur Nagar had directed handwriting expert Sri Rakesh Dwivedi to submit a report regarding disputed signature. Handwriting Expert report has also been annexed along with the compliance affidavit. In letter dated 09.11.2017, District Magistrate has noted down that after examination of the original records, it was found that the person who gave delivery of possession of land in question and signed possession memo on 16.03.1988, was the then Nayab Tehsildar Sri Ram Asre Verma and his signatures tally with the salary bills on which Sri Ram Asre Verma had also put his signatures on 10.06.1986, 02.06.1986 and 01.09.1986 etc., so it is clear that the District Magistrate directed Handwriting Expert to submit report as to whether signatures in question are of the person who delivered possession and had signed possession memo dated 16.03.1988, as such was of Ram Asre Verma or not. The Handwriting Expert Sri Rakesh Dwivedi whose opinion dated 16.11.2017 has been annexed, has examined the documents and compared same with admitted documents and finally recorded his opinion thus:

"I AM OF THE OPINION THAT THE DISPUTED INITIAL SIGNATURE 'RAM AASREY VERMA lEcaf/kr n[kyukek fnukad 16-3-88 IS EXECUTED BY THE PERSON OF SAMPLE ENGLISH SIGNATURES 'RAM AASREY VERMA."

9. From above, it has come to be established that it is Ram Asre Verma, the then Nayab Tehsildar who had signed possession memo as an officer delivering possession. The person who has signed as the person taking possession is Chief Officer, Revenue and the person who signed as a sole witness is Ram Pratap Singh, Lekhpal. What is very interesting to note is that this possession memo which has been filed as Annexure No. 1 to the counter affidavit sworn by Ashok Kumar Mishra, Nodal Officer, Urban Land Ceiling, Kanpur bears a recital to the following effect:

"vr% l{ke izkf/kdkjh ds vkns'k 17-7-82 ds }kjk fuEufyf[kr Hkwfe dk dCtk /kkjk 10¼6½ ds varxZr Jheku ftykf/kdkjh egksn; dkuiqj }kjk lqijokbtj dkuwuxks {ks= dY;kuiqj dh vkt fnukad 16-3-88 dks fn;k x;kA bldh eqLrgjh Hkwfe ij rFkk vke turk ls djk nh xbZA"

Reproduced in English:

"Thus, as per the order of Prescribed Authority dated 17.07.1982 the possession of the following land is being given under Section 10(6) by the District Magistrate, Kanpur to the Supervisor, Kanoongo, Kalyanpur Circle today dated 16.03.1988. Acknowledgment of it is made to the public in general."

10. The delivery of possession is to be taken on behalf of Collector in law, whereas, here Collector himself has given delivery of possession to some one else namely a Revenue Officer, whereas, the person who is delivering possession is Nayab Tehsildar Ram Asre Verma and the person who is taking possession and has signed is different Revenue Officer. The witness is Ram Pratap Singh Lekhpal.

11. Having examined the entire records particularly the possession memo, we are convinced that this is not the way the possession memo can be prepared nor delivery of possession of private land can be made by one officer to other officer and also witness to the same is another officer of the Revenue Department. This is no acknowledgment of delivery of possession made to the public. Apart from this, there is no notice under Section 10(6) for taking possession from a private tenure holder per force.

12. Here at this stage, it is necessary to refer to some authorities as to what would constitute delivery of possession of an agricultural land and as to whether a mere preparation of a document without participation of a private person from public as a witness or the person who is present on the spot and owner of the land or his agent, such memo of possession would amount to an effective delivery of possession as envisaged under  the Act, 1976.

13. Considering aspect of delivery of possession in respect of agricultural land, Supreme Court has held in the case of Balmokand Khatri Educational and Industrial Trust Vs. State of Punjab (1996) 4 SCC 212 that normal mode of taking possession is drafting a Panchnama in presence of Panchas and that would amount to an effective delivery of possession. In the case of Sita Ram Bhandar Society, New Delhi Vs. Lieutenant Governor, Government of NCT, Delhi & Ors (2009) 10 SCC 501 while considering the case of delivery of possession in the matters of land acquisition cases, court held that execution of memo of possession or Panchnama would amount to effective taking possession. Referring to an earlier authorities, Court held as under:

"28. A cumulative reading of the aforesaid judgments would reveal that while taking symbolic and notional possession is perhaps not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Keeping this broad principal in mind, this Court in Tamil Nadu Housing Board Vs.  Wiswam AIR 1996 SC 3377 after considering the judgment in Narayan Bhagde's case, observed that while taking possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagde's case had been rendered and held as under:

"It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not be cooperative in taking possession of the land."

29. In Balmokand Khatri Educational and Industrial Trust, Amritsar Vs. State of Punjab & Ors AIR 1996 SC 1239 yet again the question was as to the taking over of the possession of agricultural land and it was observed thus:

"It is seen that the entire gamut of the acquisition proceedings stood completed by April 17, 1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the 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. Subsequent thereto, the retention of possession would tantamount only to illegal or un lawful possession."

14. The question of delivery of possession and effect in law of deemed vesting of land under Section 10(3) of Act, 1976 came to be considered in the case of State of U.P. Vs. Hari Ram (2013) 4 SCC 280. Supreme Court very exhaustively considered legal fiction created under Section 10(3) of the Act, 1976 from the angle of delivery of possession and also what would constitute to a forceful possession in case if tenure holder refuses to voluntarily surrender of possession after service of notice under Section 10(5) of the Act, 1976. While considering the effect of legal fiction created under sub-section (3) of Section 10, Court held thus vide paragraph nos. 18, 21 & 23:

"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 Vs. 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.

21. Let us test the meaning of the expression "deemed to have been acquired" and "deemed to have been vested absolutely" in the above legal settings. The expression "acquired" and "vested" are not defined under the Act. Each word, phrase or sentence that we get in a statutory provision, if not defined in the Act, then is to be construed in the light of the general purpose of the Act. As held by this Court in Organo Chemical Industries Vs. Union of India (1979) 4 SCC 573 that a bare mechanical interpretation of the words and application of a legislative intent devoid of concept of purpose will reduce most of the remedial and beneficial legislation to futility. Reference may also be made to the Judgment of this Court in Directorate of Enforcement Vs. Deepak Mahajan (1994) 3 SCC 440. Words and phrases, therefore, occurring in the statute are to be taken not in an isolated or detached manner, it is associated on the context but are read together and construed in the light of the purpose and object of the Act.

23. The expression "deemed to have been acquired" used as a deeming fiction under sub-section (3) of Section 10 can only mean acquisition of title or acquisition of interests because till that time the land may be either in the ownership of the person who held that vacant land or to possess such land as owner or as a tenant or as mortgagee and so on as defined under Section 2(1) of the Act. The word "vested" has not been defined in the Act, so also the word "absolutely". What is vested absolutely is only the land which is deemed to have acquired and nothing more. The word "vest" has different meaning in different context; especially when we examine the meaning of vesting on the basis of a statutory hypothesis of a deeming provision which Lord Hoffmann in Customs and Excise Commissioners v. Zielinski Baker and Partners (2004) 2 All E.R. 141 (at 11) described as "heroic piece of deeming".

15. Again considering the definition of the word 'vest' or 'vesting' with the aid of various decisions and the dictionaries, Court concluded in para 29 and 30 as under:

29. What is deemed "vesting absolutely" is that "what is deemed to have acquired". In our view, there must be express words of utmost clarity to persuade a court to hold that the legislature intended to divest possession also, since the owners or holders of the vacant land is pitted against a statutory hypothesis. Possession, there is an adage "nine points of law" In Beedall v. Maitland (1881) 17 Ch. D. p.183 Sir Edward Fry, while speaking of a Statute which makes a forcible entry an indictable offence, stated as follows:

"this statute creates one of the great differences which exist in our law between the being in possession and the being out of possession of land, and which gave rise to the old saying that possession is nine points of the law. The effect of the statute is this, that when a man is in possession, he may use force to keep out a trespasser; but if a trespasser has gained possession, the rightful owner cannot use force to put him out, but must appeal to the law for assistance."

30. Vacant land, it may be noted, is not actually acquired but deemed to have been acquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in hands of few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as sub-sections (5) and (6) of Sectin 10, the words ''acquired' and ''vested' have different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislative intent.

16. Thus, it is well settled that there has to be not only of possession de jure but has to be a possession de facto as well. Legal fiction created under Section 10(3) leads to a conclusion of possession de jure only but for the purposes of Repeal Act, it is possession de facto which is necessary. If tenure holder is to get benefit under Repeal Act, he will have to demonstrate that there has been no possession de facto of the State and on the other hand the State which is trying to defend that ceiling proceedings did not get abated in a case, it will have to show and establish that it has taken possession de facto.

17. As we have already discussed above with the aid of various authorities of Supreme Court that it should be a case of execution of Panchnama or memorandum acknowledging the delivery of possession, called Dakhalnama (Memo of Possession), namely giving and taking possession on the spot in presence of the witnesses which is necessary to constitute de facto possession. It is also clear that vesting under Section 10(3) would not amount to a possession de facto of the State under the Act, 1976.

18. Now, on the question of dispossession whether peaceful or forceful, Supreme Court again in the case of Hari Ram (supra) exhaustively dealt with the subject. While examining delivery of land, notice under Section 10(5) to be a mode for peaceful dispossession, it recorded that in the event of denial of surrender by tenure holder an action under Section 10(6) would amount to forceful dispossession. So considering the aspect of forceful dispossession it can be concluded that absence of any notice under Section 10(5) and 10(6) would not result in de facto possession and any such dispossession would be totally illegal and shall have no legal consequence adverse to the interest of tenure holder. The action 'may' occurring in these two sub-sections accordingly held to be read as 'shall'. The ultimate paragraphs of the Apex Court judgment dealing with the forceful dispossession in the case of Hari Ram (supra) read 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) to 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 only in a situation which falls under sub-section (6) and not under sub-section (5) to Section10. 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), than "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'."

19. Applying the above law to the facts of the present case, in the first instance, we find that there has been no notice as contemplated under Section 10(6) of the Act, 1976 to the father of the petitioners who was recorded tenure holder. After notice under Section 10(5) since tenure holder did not surrender possession, it was mandatory for the respondents to have issued notice under Section 10(6) authorizing taking forceful possession. In the second instance we find that memo of possession which has been heavily relied by the respondents and which has been presented in the counter affidavit as document evidencing delivery of possession under Section 10(6) and has been strongly defended by learned Addl. Advocate General, we find that this document does not bear signature of tenure holder and apart from this, the document also acknowledges such statement which is inconceivable in the case of possession of memo of forceful dispossession of tenure holders. The document bears the recital that District Magistrate is delivering possession under orders of Prescribed Authority to Supervisor Kanoongo. We fail to understand as to how District Magistrate would deliver possession to the Supervisor Kanoongo whereas in law it is District Magistrate on whose behalf possession has to be taken. The possession memo certifies only that possession of land is taken in presence of so and so witnesses. From the authorities cited herein above, we are sure that in matters of forceful dispossession the witnesses who have signed should be from public. If a Revenue Officer signs as a witness and other Revenue Officer delivers land to another Revenue Officer, such document would be a sham. It is indeed a sorry state of affairs that Revenue Authorities have not only defended this document but referred it in their pleadings that delivery of possession has been effectively taken on the basis of this document. The contention raised in the writ petition was that the signatures of the person delivering the possession in the alleged possession memo is not of Ram Singh father of the petitioners. The District Magistrate in his letter dated 09.07.2017 has acknowledged this fact that the person who delivered the possession is Nayab Tehsildar namely Ram Asre Verma. Thus, contention raised in the writ petition stands admitted that it was not Ram Singh, the tenure holder, who had delivered the possession. Under the circumstances, we are bound to hold that no forceful dispossession as contemplated under Section 10(6) of the Act, 1976 had taken of petitioners' father and he continued in possession and after his death the petitioners came into possession and have continued to be in actual physical possession of land in question and are entitled to the benefit of Repeal Act.

20. Thus, in view of the above, in respect of land in question, ceiling proceedings have stood abated under the Repeal Act, 1999 and respondents are restrained from interfering with the possession of petitioners of the land in question in any manner whatsoever and Revenue Authorities are directed to carry out necessary correction in the land records accordingly.

21. In this case, we find very peculiar circumstance existing where Revenue Authorities prepared a manipulated document showing delivery of possession and then thereafter, contested the matter on the basis of said document knowing fully that the document does not constitute a valid document of Memo of possession and that there has never been a notice under Section 10(6) of the Act, 1976. The petitioners have not only been unnecessarily harassed and forced for the present litigation but the respondents have in a most mischievous manner contested the issue on a fraudulent document. We would be failing in our duty, if we let State respondents' conduct go unnoticed. State authorities are expected to present correct facts and with utmost sense of sincerity, but we find it most lacking in present case. To present a document purported to be one prepared under law may be incorrect for many defects but to present a document as one lawfully executed knowing it to be illegal is something impermissible act and conduct during judicial proceedings. We are shocked that instead of giving up its stand in given facts and circumstances of the case, the State respondents not only dended the document through pleadings but also advanced arguments in defense thereof. We are of considered opinion that this litigation has been forced by State authorities as they did not allow petitioners' claim illegally treating the ceiling proceedings as not abated and hence petitioner is entitled for exemplary cost. The petitioners are entitled to cost which we quantify as Rs. 2 lakhs. The cost shall be paid at the first instance by the State to the petitioners. However, it will be open for the State to recover the said amount from the persons who have been responsible for such act of carelessness and negligence and deliberate act of playing fraud and forging a document meant to be official one.

22. In view of above, writ petition is allowed with aforesaid observations/ directions.

Order Date :- 27.11.2017

IrfanUddin