Chakwa Singh vs State Of U.P. And 3 Others
2021 Latest Caselaw 936 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Court No. - 36
 

 
Case :- WRIT - C No. - 11935 of 2018
 

 
Petitioner :- Chakwa Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Ajay Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Jayant Banerji,J.

This writ petition has been filed by the petitioner seeking a writ of mandamus commanding the respondents not to interfere in the peaceful possession of the petitioner over the land in question, that is, Khasra No. 739 situated at Village Dara Ali Bairoon, Pargana, Tehsil & District Saharanpur.

It is stated that in proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act of 1976), an area of 689.57 square meters by the order dated 11.6.1979 was declared surplus. Notice under Section 10(3) of the Act of 1976 was issued on 27.10.1980 which was published in the gazette dated 15.10.1983. The notice under Section 10(5) of the Act, 1976 was issued on 1.3.1984 and by means of a possession memo dated 5.4.1994, the possession of the plot in question was taken.

It is contended by the learned counsel for the petitioner that no notice under Section 10(6) of the Act was ever issued by the respondent-Authorities and the possession memo dated 5.4.1994 is only a formal letter of possession and no actual and physical possession was taken by the respondents with regard to the land in dispute. It is stated that the Act of 1976 was repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 with effect from 18.3.1999. It is contended that thereafter by means of a registered sale deed dated 11.1.2002, the plot in question was purchased by the petitioner. It is stated that the petitioner is owner in possession of the property in question along with his brother, however, in the month of January, 2018 some employees of the State and district authorities tried to demarcate the land but they were resisted by the petitioner and hence the writ petition was filed. It is contended by the learned counsel that by means of the possession memo dated 5.4.1994 only de jure possession was taken but de facto possession was not taken. Therefore, the petitioner having purchased the land in question on 11.01.2002 after the repeal of the Act of 1976 by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Repeal Act), would be the owner and in possession of the said land. It is further contended that the possession was not taken by the Collector but, was taken by the Tehsildar which is in clear violation of the provision enjoining taking over of the possession of the land declared as surplus by the Collector.

Countering the submission made by the learned counsel for the petitioner, the learned Standing Counsel has contended that admittedly the possession memo dated 5.4.1994 reflected the taking over of the possession of the land in dispute. The so-called sale deed dated 11.01.2002 was executed by the original tenure holder in favour of the father of the petitioner. He contends that the petitioner had full knowledge of the proceedings taken under provisions of the Act of 1976 viz-a-viz the original tenure holder and yet he chose to approach this Court only in the year 2018 by means of the instant writ petition and has not explained the laches. It is further contended that in view of the provisions of Section 10 (4) of the Act of 1976, the sale deed executed in favour of the father of the petitioner is a void document. The predecessor of the petitioner being purchaser subsequent to the vesting of the land in the State, the petitioner does not have any right to challenge the possession of the State over the land in question.

A perusal of the writ petition reveals that the original tenure holder Mohd Isha had filed his statement under Section 6(1) of the Act 1976. Notification under Section 10(3) of the Act of 1976 was issued on 15.10.1983. A notice under Section 10(5) of the Act of 1976 was issued on 01.03.1984 and the title of the land in dispute is being claimed by the petitioner under a sale deed dated 11.01.2002 executed by the original tenure holder Mohd Isha in favour of the father of the petitioner.

Thus, the notification under Section 10(3) of the Act of 1976 admittedly being issued on 15.10.1983, the land in question is deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date specified.

Section 10(4) of the Act of 1976 reads as follows:-

10(4) "During the period commencing on the date of publication of the Notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3).

(i) No person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the Notification aforesaid and any such transfer made in contravention of this provisions shall be deemed to be null and void; and

(ii) No person shall after or cause to be altered the use of such excess vacant land. "(Emphasis added)".

Section 3 of the Repeal Act provides as follows:-

"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 by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;

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

...................."

The sale deed under which the petitioner is claiming title was executed on 11.1.2002 and a copy of the same has been enclosed as Annexure no.4 to the writ petition. A perusal of this sale deed reveals that an area of 0.269 hectares situated on Khasra No.739 at village Dara Ali Swad Bairoon, Pargana, Tehsil and District Saharanpur was sold to Mamchand (stated to be the father of the petitioner). The recital on pages 8 and 9 of the sale deed (pages 28 and 29 of the writ petition) reveals that possession at the site was given to the vendee and that an agreement to sell the said land was was registered on 21.01.1991 in the office of the Sub Registrar Saharanpur, which is binding on the vendor and vendee. The agreement to sell dated 21.01.1991, however, has not been filed by the petitioner.

Admittedly, the notification under Section 10(3) was published on 15.10.1983 the notice under Section 10(5) of the Act of 1976 was issued on 01.03.1984, that is, about seven years prior to the agreement to sell dated 21.01.1991. The formal exercise for taking over possession under Section 10(6) was done on 05.04.1994 as reflected in the possession memo appearing on page 19A of the writ petition. In the counter affidavit a warrant for mutation ('parwana amaldaramad') dated 11.04.1994 has also been enclosed directing the Tehsildar to strike off the name of Mohammad Isha (the vendor of the sale deed dated 11.01.2002) and to enter the name of the State Government in the revenue records.

The sale deed dated 11.01.2002 was executed to effectuate the terms of the agreement to sell dated 21.01.1991. The said agreement to sell dated 21.01.1991, in respect to which there is a categorical recital in the sale deed dated 11.01.2002, cannot but be said to be for unlawful consideration rendering the same void. Further, the transfer is also hit by the prohibition provided under Section 10(4) (i) of the Act of 1976 rendering the same void having been executed after the notification under Section 10(3) of the Act of 1976.

Regardless of the above, it is clear that the original tenure holder who was the owner in possession at the time of the notification under Section 10(3) and at the time of the notice under Section 10(5) of the Act of 1976, and, from whom possession was taken pursuant to proceedings under Section 10(6) of the Act of 1976, is not before this Court. Thus, the petitioner would have no locus standi to challenge the alleged inaction on part of the respondents in taking possession.

In the case of State of U.P. and another Vs. Adarsh Seva Sahkari Samiti Ltd.; (2016) 12 SCC 493, the Supreme Court observed as follows.

4. We have examined this aspect. Having regard to the undisputed fact that the respondent has purchased the property from the declarant which is vested with the State Governments under Section 10(5) of the Act in terms of Section 10(3) notification, therefore, the transfer of property in favour of the respondent, who is claiming its interest in the said property is void ab initio in law. On this ground alone, the order passed by the High Court cannot be allowed to sustain.

5. It is also brought to our notice by the learned Senior Counsel Mr. Misra that after the proceedings under Sections 10(3) and 10(5), notice and the alleged taking over possession of the land in question, the subsequent event has taken place, namely the said property has been transferred to the Lucknow Development Authority by the State Government and the Development Authority has laid a park for public under. On this, the learned Senior Counsel for the respondent submits that the said event has taken place during the pendency of the proceedings before the High Court. Though it may be the fact, subsequently, after the transfer of the property in favour of the Development Authority, the Authority has developed a park is an undisputed fact. This is also a very relevant aspect of the matter for this Court to annul the impugned judgment/order passed by the High Court.

6. In our opinion, the respondent herein has no locus standi to challenge the inaction on the part of the appellants viz. not taking possession legally strictly complying with the statutory provisions under Section 10(5) of the Act taking over possession as provided under Section 10(6) of the Act. At this juncture, this aspect need not be examined by this Court at the instance of the respondent".

Under the said factual scenario, it is not for the petitioner to challenge his dispossession or to impugn the possession of the State Government over the land in question. The judgment of the Supreme Court in the case of State of U.P. Vs. Hari Ram (2013) 4 SCC 280 would be of no assistance to the case of the petitioner under the facts and circumstances of the instant case.

This writ petition, lacking merit, is accordingly, dismissed.

Date:- 18.1.2021

sfa/A.V.Singh