State Of U.P. Thru Secy. Avas Avam ... vs Amin Uddin And Others
2018 Latest Caselaw 3016 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40
 

 
Case :- WRIT - C No. - 54830 of 2011
 

 
Petitioner :- State Of U.P. Thru Secy. Avas Avam Shahari Niyojan
 
Respondent :- Ruknuddin And Others
 
Counsel for Petitioner :- Sanjay Goswami (A.C.S.C.)
 
Counsel for Respondent :- Ashfaq Ahmad Ansari,Madhusudan Dikshit
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Harsh Kumar,J.

Heard the learned Standing Counsel for the State and Sri Madhusudan Dikshit for the respondent nos. 1 to 5.

The State has filed this writ petition assailing the order passed by the Collector Saharanpur dated 29.10.2010 primarily on two grounds, namely, that the Collector had no jurisdiction in the matter to pass any such order relating to the declaration of possession or otherwise, which could have been done only by the competent authority under the Urban Land (Ceiling & Regulation) Act, 1976. The other submission raised by the learned Standing counsel is that the possession of the disputed land from the tenure holder had been taken as per the provisions of Section 10(5) of the Urban Land (Ceiling & Regulation) Act, 1976, and consequently, once the possession had been taken over, the finding of the Collector that actual physical possession remained with the respondents is of no consequence keeping in view the various pronouncements of this Court as well as the Apex Court. The learned Standing Counsel therefore submits that once the possession had been taken over and it had been handed over to the Saharanpur Development Authority, there was no occasion for the Collector to have commented upon the nature of the proceedings.

Sri Madhusudan Dikshit on the other hand for the respondents submits that the Collector has done nothing but simply on the administrative side complied with the directions of the High Court dated 09.04.2009 on making an enquiry with regard to the status of actual physical possession of the respondents and nothing beyond that. He submits that the order of the Collector was not an adjudication of any of the rights of the parties in terms of Urban Land (Ceiling & Regulation) Act, 1976 and was a compliance order in view of the direction of the High Court dated 09.04.2009 in Writ Petition No. 50818 of 2000.

Sri Dikshit further submits that the original tenure holder late Sri Ruknuddin against whom the notice had been issued and the proceedings had been initiated admittedly had died on 22.01.1993. In the circumstances, the notice of possession as alleged by the petitioner-State and appended as Annexure-8 to the writ petition was clearly issued in the name of a dead person. There was no occasion for its service on a dead person, and even otherwise, no such notice was served either on the heirs or legal representatives namely the answering respondents who are sons of late Ruknuddin.

It has further been submitted that if possession had not been taken either from the original tenure holder or the answering respondents in accordance with the provisions of the 1976 Act, namely after complying with the provisions of Section 10(5) & 10(6) of the 1976 Act, then the tenure holder and his heirs the answering respondents are entitled to the benefit of the Repeal Act of 1999, and consequently, the land would not vest in the petitioner-State. The same will therefore be treated to have been released, and accordingly, the order of the Collector does not require any interference by this Court. The counter affidavit has been filed categorically stating the facts as pleaded before us on behalf of the respondents to which a rejoinder has been filed by the petitioner-State. The fact of death of Ruknuddin has not been denied and to the contrary in paragraph no. 11 of the rejoinder affidavit it is admitted that a notice had been issued on 10.04.1998 to the tenure holder who is none else than late Sri Ruknuddin. This is evident also from the recital in the notice as also the possession memo dated 22/23.04.1998 that has been relied upon by the petitioner. It has been stated in the rejoinder affidavit of the State that the land had been declared surplus under the proceedings of the Urban Land (Ceiling & Regulation) Act, 1976 after the tenure holder had been issued notices and who failed to submit any return to the said notice, and consequently, notices were issued on 09.09.1993 under section 10(1) of the Act followed by a notification on 28.01.1994 under Section 10(3) of the Act.

We have considered the submissions raised and perused the pleadings on record.

The facts as borne out in the affidavits exchanged between the parties indicates that the original tenure holder Ruknuddin had died during the pendency of the proceedings before the competent/prescribed authority with regard to which an information had been tendered, yet the proceedings were finalised against him on 22.07.1993 after his death followed by the notice under Section 10(1) of the 1976 Act on 09.09.1993 and under Section 10(3) on 28.01.1994.

The petitioner-State contends that it had issued notices under Section 10(5) on 10.03.1998. We have examined the said notice and we find it to have been issued in the name of late Sri Ruknuddin who had admittedly died in January 1993 and was the recorded tenure holder. In the rejoinder affidavit as well as in the writ petition there is no averment denying the aforesaid fact which is the stand taken by the respondents. There is also no material filed on behalf of the State to demonstrate that such a notice under Section 10(5) of the 1976 Act was served on the heirs of late Ruknuddin. In the aforesaid background when the date of death of Ruknuddin is not disputed and is admitted in paragraph 8 of the writ petition then it is more evident that the entire proceedings including the issuance of notice under Section 10(5) of the Urban Land (Ceiling & Regulation) Act, 1976 against the tenure holder were coram non judice as no proceedings could have been undertaken against a dead person.

Apart from this we further find that the answering respondents being legal heirs filed an appeal No. 1007 of 1998 against the proceedings before the competent authority that was exparte before the District Judge which was dismissed as having abated on 19.05.1999. This was on account of the repeal Act having come into force, and consequently, another application moved on their behalf before the competent authority on 18.09.2000 was dismissed on 22.09.2000.

It appears that the answering respondents came up before this Court by filing a Writ Petition No. 50818 of 2000 challenging the aforesaid action and seeking protection from this Court in relation to the aforesaid disputed land. A Division Bench of this Court issued a direction to the Collector on 09.04.2009 to examine the claim of the petitioner including the fact as to whether they are entitled to seek any benefit under Section 3(2)(a) of the repeal Act 1999 or not.

The Collector therefore in compliance of the said order called for a report from the competent authority dated 22.06.2009 and from the Tehsildar, Saharanpur on 22.07.2009 and also heard the answering respondents in response thereto. After having examined the records, the Collector Saharanpur came to the conclusion that even though the transaction proceedings of taking over possession is on record and the entry has been made in the revenue records under the column land declared surplus under the Urban Land (Ceiling & Regulation) Act, 1976, yet the actual physical possession  of the answering respondents has remained intact with them and they are in actual possession of the land continuously.

We having gone through the records and we find that the possession memo which was prepared on 22/23.03.1998, no where indicates as to how possession was taken and what is the name of witness in whose presence such possession was taken. There is no name indicated in the writ petition filed by the State or even in the rejoinder affidavit. The name of the Lekhpal in whose presence the alleged possession is said to have been taken has not been mentioned and the printed proforma of the possession memo is blank to that effect. The question as to how the factum of taking actual physical possession has been established by the State was discussed by a Division Bench in the case of Mohd. Islam & 3 Others Vs. State of U.P. in Writ Petition No. 15864 of 2015 decided on 4th December, 2017. The said decision was quoted with approval by a Division Bench in the case of Rati Ram Vs. State of U.P. & Others 2018 (4) ALJ 338 paragraph no. 8 as follows:-

"8. The 'Dakhalnama' a certified copy whereof has been produced before us does not even bear the signatures of any attesting witness. We find this to be a lapse and patent illegality the benefit whereof has to be given to the land holder in view of the Division Bench judgment in the case of Mohd. Islam and 3 others v. State of U.P. and 2 others, Writ Petition No. 15864 of 2015 decided on 4th December, 2017. It was also a case of District-Saharanpur. We extract paragraph Nos. 44 to 47 of the said judgment which are as under:

"44. Since, in the present case, neither factum of taking actual physical possession by Competent Authority under Ceiling Act has been fortified by placing any document nor factum of possession of Development Authority at any point of time has been shown, therefore, argument advanced by learned Standing Counsel on the basis of State of Assam (supra) will not help.

45. Viewed from the above exposition of law we find in the present case that no such exercise of issuing notice under Section 10(6) of the Act, 1976 and thereafter execution of memo on the spot had taken place which is mandatory for ceiling authorities as admittedly the original tenure-holder and then his successors had never voluntarily surrendered the possession of land. In the absence of voluntary surrender of possession of surplus land, the authorities were required to proceed with forcible possession. The document of possession memo would not by itself evidence the actual taking of possession unless it is witnessed by two independent persons acknowledging the act of forcible possession. As discussed above in the earlier part of this. judgment we are not able to accept the alleged possession memo worth calling a document as such in the absence of certain requisites, nor does it bear the details of witnesses who signed the document. It bears mainly signatures of Chackbandi Lekhpal, a person taking possession and then the document has been directed to be kept on file. This is no way of taking forcible possession nor, a document worth calling possession memo. A mere issuance of notification under Section 10(3) and notice under Section 10(5) regarding delivery of possession does not amount to actual delivery of possession of land more especially in the face of the fact that the tenureholder had in fact not voluntarily made surrender of possession of surplus land and no proceeding under Section 10(6) had taken place.

46. Since, we have held that possession memo dated 20.06.1993 is not a possession memo and is a void document for want of necessary compliance under Section 10(6) of the Act, 1976, the petitioners are entitled to the benefit under Section 4 of the Repeal Act, 1999 that came into force w.e.f. 20.03.1999.

47. We may also place on record that respondents claim that possession of land in question was handed over to Saharanpur Development Authority pursuant to Government Order dated 29.12.1984 but here also we find that no material has been placed on record to show that any such actual physical possession was handed over to Saharanpur Development Authority and the said authority is in de facto possession of land in dispute. Except bare averment made in the counter-affidavit respondent have not chosen to place anything on record to support the stand that de facto possession over land in dispute is that of Saharanpur Development Authority. Therefore even this stand has no legs to stand and is rejected."

There is yet another aspect of the matter namely under the provisions of Section 10(5) of the Urban Land (Ceiling & Regulation) Act, 1976 a period of 30 days is given to the tenure holder to handover peaceful possession, and then if the tenure holder fails to deliver possession forcible possession can be adhered to in terms of Section 10(6) thereof.

In the instant case surprisingly enough even before the expiry of 30 days, the possession memo is said to have been taken on 22/23.03.1998. This was clearly an over-reach and a clear paper transaction which establishes that the petitioner-State has proceeded to assume possession only on paper which is contrary to the provisions of Section 10(5) of the Act and is unlawful. In all such matters the State relies on the judgment of the Apex Court in the case of State of Assam Vs. Bhaskar Jyoti Sharma & Others 2015 (5) SCC 321 that has been followed by a Division Bench of this Court in the case of Shiv Ram Singh Vs. State of U.P. & Others 2015 (5) AWC 4918. In the instant case the aforesaid judgments would not apply in view of the peculiar facts of this case as discussed herein. To the contrary since taking over of possession by the State has not been established in the present case, the issue stands covered by the decision of the Apex Court in the case of State of U.P. Vs. Hari Ram 2013 (4) SCC 280 and the decision in the case of Raghbir Singh Sehrawat Vs. State of Haryana & Others 2012 (1) SCC 792 as well as the Division Bench judgment of this Court in the case of Yasin Vs. State of U.P. & Others 2014 (4) ADJ 305. The latest Division Bench of this Court with which we find ourselves in complete agreement with is in the case of Lalji Vs. State of U.P. & 2 Others 2018 (5) ADJ 541 that has been delivered after taking into account the judgment of the Apex Court in the case of Bhasker Jyoti Sharma (supra).

The question of taking actual possession also has not been established inasmuch as the proceedings were against a tenure holder who had already died without any notice to the heirs or legal representatives of the tenure holder. Apart from this actual physical possession has been found to be in favour of the answering respondents as per the impugned order of the Collector itself which was not an order under the 1976 Act but was a fact finding order as per the direction of the High Court dated 09.04.2009. In such circumstances neither the impugned order can be described as or without authority in law nor the State has been able to establish that the finding recorded by the Collector with regard to actual physical possession is perverse.

On the other hand possession has neither been taken lawfully nor actually from the respondents. The contention that possession had been handed over to the Saharanpur Development Authority is therefor also unsubstantiated and falls through. The disputed land therefore will not vest in the State as a result whereof the beneficiary, namely the Saharanpur Development Authority cannot step into the shoes of the State to claim possession. In all matters pertaining to Ceiling laws, there is a compulsory exaction and practically confiscation of land through legislation, by virtue whereof the land vests in the State for further settlement to a beneficiary. In our opinion, the beneficiary gets rights only after the proceedings attain finality after full contest subject to any judicial proceedings including the higher judiciary. Thus, unless finality is attached with regard to the vesting of the land in the State, a beneficiary would not get any better title than the State and would succeed only if the land vests in the State. If the land is held to be that of the tenure holder and if the surplus declaration is held to be invalid in judicial proceedings, the vesting of the land in the State would dissolve and would not be final and complete so as to allow the beneficiary to claim any right title or interest whatsoever.

The Development Authority has not chosen to content the matter either by filing it's petition or by seeking impleadment in this case. The petitioner-state has also not impleaded the Authority as a co-petitioner or even a performa respondent.

Consequently, writ petition has no merits and is accordingly rejected. The petitioner-State through the Collector and the competent authority Urban Ceiling are directed to correct the entries and restore them in favour of the answering respondents accordingly.

Order Date :- 3.10.2018

P Kesari/S. Chaurasia