Babu & Ors. vs State Of U.P. Thru. Secy. Urban ...
2021 Latest Caselaw 9094 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 

 
Case :- MISC. BENCH No. - 1960 of 2019
 
Petitioner :- Babu & Ors.
 
Respondent :- State Of U.P. Thru. Secy. Urban Land Ceiling Lucknow & Ors.
 
Counsel for Petitioner :- Shiwa Kant Tiwari,Birendra Kumar Mishra,Chandra Prakash Tripathi,Sajjad Husain
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajan Roy,J.

Hon'ble Ravi Nath Tilhari,J.

1. Heard Sri Sajjad Husain, learned counsel for the petitioner and Sri Sanjay Sarin, learned counsel for the State.

2. The facts of the case in brief are that the land in dispute bearing Gata No. 1450M (0-10-15), Gata No. 1451/1 (0-6-0), Gata No. 1451/2 (1-1-0) was initially recorded in the name of forefathers of the petitioners as per Khatauni pertaining to Fasli No. 1420-1425. The same was subsequently recorded in the name of the petitioners and one Ram Khelawan. With respect to the same, land proceedings were undertaken under the U.P. Urban Land (Ceiling and Regulation) Act, 1976 (herein after referred to as "Act, 1976") in 1987 and thereafter the aforesaid land was declared as surplus vide order dated 18.06.1988. It is said that these proceedings were undertaken against the original land holder Smt. Maika, who was an ancestor of the petitioner. After passing of the order dated 18.06.1988 final statement was issued on 24.12.1988 under Section 9 of the Act, 1976 to Smt. Maika wife of Late Nanhe. When it was served upon Smt. Saryu Devi wife of Sri Lalla, petitioner herein, who is the nephew of Smt. Maika. On 20.01.1989 an advertisement under Section 10 (1) of the Act,1976 was sent for publication on 20.07.1989, which was published in the Government Gazette on 28.10.1989. After the said publication advertisement under Section 10 (3) of the Act, 1976 was published in the Gazettee on 12.05.1990. The land thus vested in the State Government from the said date. Thereafter, notice under Section 10 (5) of the Act, 1976 was issued to the land owner Smt. Maika on 28.01.1994 to handover the possession to the Collector, Lucknow.

3. There is nothing on record, especially in the counter affidavit of the contesting opposite parties to show that the land owner Smt. Maika voluntarily surrendered possession of the land in question to the State nor there is any such averment in the counter affidavit. We also do not find any such averment in the counter affidavit of the opposite parties that forcible possession of the land in question was taken under Section 10(6) of the Act, 1976. Not only there is no averment of taking forcible possession, no memo of possession is annexed to the counter affidavit. Even the date of taking the possession has not been mentioned in the counter affidavit. In fact the Khatauni pertaining to the land in question, a copy of which is annexed as Annexure-3A, shows that for the first time an entry was made about the land having been declared surplus only in pursuance to an order of the S.D.M. concerned dated 07.06.2008 and prior to it the name of the petitioners continued to be recorded in the revenue record. A Khasra pertaining to the land in question for the Fasli 1425 has been annexed as Annexure-3, which shows the petitioners along with Ram Khelawan to be in possession. It is not out of place to mention that consequent to the consolidation operations the aforesaid land bearing Gata No. 1450, 1451/1 and 1451/2 were consolidated and renumbered as Khasra No. 1000. The said land is situated in Village-Sarsawan, Tehsil Sarojini Nagar, Pargana Lucknow, District Lucknow. The aforesaid Khasra and Khatauni, contained as Annexure 3 and 3A have been mentioned by the petitioners in para 8 and 10 to the writ petition. The veracity of these documents has not been denied by the opposite parties in their counter affidavit, wherein they have given reply to the aforesaid paragraphs in para 20 and 21 of their counter affidavit. Bald denial is no denial in the eyes of law.

4. The Act 1976 was repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (herein after referred to as "Repeal Act, 1999"). As per Section 2 read with Section 3 (a) of the Act, 1999, the Act, 1999 shall not affect the vesting of any vacant land under Sub-Section 3 of Section 10 of the Act, 1976, possession of which has been taken over by the State Government or any person duly authorized by the State Government on his behalf or by the competent authority.

5. Consequent to promulgation of Repeal Act, 1999, as the petitioners continued to be in possession of land in question, therefore, this petition was filed in the year 2019. While the relief Nos. 1 and 2 are irrelevant and have not been pressed by counsel for the petitioners, relief No.3 and 4 are relevant in the context of Repeal Act, 1999 and have been pressed before us.

6. It is submitted by counsel for the petitioners that subsequent to the aforesaid Repeal Act, 1999, vide Section 3 thereof, it has not been disputed by the opposite parties that the said Repeal Act, 1999 applies in the State of U.P. also. In fact the import and application of the said Repeal Act, 1999 came to be considered by Hon'ble Supreme Court in Civil Appeal No. 2326 of 2013: State of U.P. Vs. Hari Ram and based on it various decisions have been rendered by coordinate Benches of this Court on the subject.

7. The contention of learned counsel for the petitioners is that possession not having been surrendered under Section 10 (5) and the same having not been taken over by the State under Section 10 (6) of the Act, 1976, as a result of Repeal of Act, 1976 by the subsequent Act, 1999, the records are required to be corrected and the endorsement in the remarks column of the revenue record regarding the said land having been declared surplus under the Act, 1976 by the order of the S.D.M. dated 07.06.2008 is required to be deleted and the name of the petitioners, herein, is liable to be restored back in respect of the said land. It is further prayed that the opposite parties should be restrained from interfering in possession of the petitioners in respect of the same.

8. We put a pointed query to Sri Sanjay Sarin, learned counsel for the State as to when possession of the land in question was taken by the State, he could only refer to para 7 and 11 of the counter affidavit. We have perused the same.

9. Before dealing with the said averments, we need to refer to the law on the subject as to how possession of the land by the State is to be proved in this context. We may in this regard refer to a Division Bench judgment of this court rendered in the Yasin Vs. State of U.P. and others (2014)4 Allahabad Law Journal 570, wherein reference has been made to the decision of the Hon'ble Supreme Court in the case of Hari Ram (supra) where, it has been opined that 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 18.03.1999. 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, 1999. In the light of these observations of Supreme Court of India in the case of Hari Ram, the Division Bench opined that 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, 1976.

10. It further delved into procedure for taking possession which 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. The Division Bench has quoted paragraph 3 of the directions, referred herein above, and thereafter, considering the same, has further opined, it is clear that 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, 1976 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.LC.-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, 1976. The Competent Authority is also required to place his signature endorsing the date of taking consideration.

11. When we consider the facts of the case in the light of the legal position enunciated by Hon'ble Supreme Court in Hari Ram (supra) and the Division Bench of this Court in Yasin (supra) as aforesaid, we do not find any pleading or documentary proof to establish any voluntary surrender by the land owner or taking of delivery of peaceful possession under sub-section (5) of Section 10 of the Act, 1976 or for that matter forceful dispossession of the land owner under sub-section (6) of Section 10. The pleading in this regard is itself absent in the first place, what to say of the absence of documentary proof.

12. Moreover, we find from the counter affidavit of the State that it got a survey done with respect to the land in question and the survey report dated 15.05.2019 is annexed as Annexure 7 to the counter affidavit, it does not mention about any physical possession having taken place or existing with State or any of its instrumentality. It does not even mention that any of the land in question is in possession of the Lucknow Development Authority to which it is said to have been transferred. The possession and transfer, which are being referred in the counter affidavit are only on paper. There is nothing to show taking over of actual physical possession by the State or its instrumentality. In fact the servery report mentions about the possession of the petitioners in respect to Gata No. 1000, which is the new Gata number of the old Gatas including old Gata No. 1450, 1451/1, 1451/2 etc., therefore, the survey report far from helping cause of the opposite parties, helps to the cause of petitioners herein. If physical possession had been taken under Section 10 (5) or 10 (6) and thereafter the petitioners reentered the land such subsequent repossession of petitioners could be said to be illegal but there possession cannot be termed as illegal merely because of vesting of the land in the State under Section 10(3) of the Act, 1976 in view of the law discussed earlier.

13. As regards the contention of Sri Sarin, legal heirs of Ram Khelawan have not been impleaded, learned counsel for the petitioner submitted that Ram Khelawan had died. Moreover, Sri Sarin himself stated that recently he has been given instructions that legal heirs of Ram Khelawan had sold of some of the land. This hardly helps the cause of the State. We are not adjudicating the rights of the petitioners viz-a-viz Ram Khelawan. We are only adjudicating the rights of the petitioners flowing from the Repeal Act, 1999 in respect of their share of the holding, which is involved in these proceedings.

14. The petitioners along with Ram Khelawan were recorded as tenure holder in respect of the land in question, which was initially recorded in the name of Nanhe and after his death in the name of his wife Maika. It is not in dispute, that but for the proceedings under taken under the Act, 1976, the petitioners were so recorded. As regards Ram Khelawan rights, this judgement would not affect him adversely in any manner viz-a-viz the petitioners.

15. In view of the above exposition of law, we do not see as to how the averments made in para 7 and 11 of the counter affidavit belie the claim of the petitioner. In para 7 vague assertion has been made that notice under Section 10 (5) of the Act, 1976 was given to the original land owner Smt Maika on 28.01.1994 to handover the possession to the Collector, Lucknow and accordingly the possession was taken over by the State Government. There is no documentary proof at all in the light of Division Bench judgment discussed herein above, as to when possession was taken, was it voluntarily surrender or it was forcible dispossession of Maika. As regards para 17 of the counter affidavit, it merely says that District Magistrate vide his order dated 20.07.1987 had authorized the competent authority, Assistant Engineer, Urban Land Ceiling to transfer the possession of the land to the regular allottees, which is obviously a reference to a ceiling Patta which is given to the landless labourer etc, however, in this case also the requirements of law, as discussed in the case of Yasin (supra) have not been satisfied. Neither the name of any allottee is mentioned nor there is any proof about Patta having been granted of the said land or that any person is in possession thereof. The survey report dated 15.5.2019 mentions about the possession of the petitioner with respect to the land in question. The averments made in the counter affidavit do not belie the claim of the petitioners.

16. As regards the contentions of Sri Sarin that the challenge was delayed, we are of the opinion that as the actual physical possession still continues with the petitioners and it was not taken by the State, there is no question of delay in seeking the relief as aforesaid. The decision relied by Sri Sarin, which are reported in 2015 (5) SCC 321 State of Assam Versus Bhaskar Jyoti Sharma and others, 2017 (7) ADJ 362 Dhani Ram Verus State of U.P. and others and 2015 (7) ADJ 630 Shiv Ram Singh Vs. State of U.P. and others do not apply to the facts of the case. In the case of Bhaskar Jyoti (supra) the fact was that the actual physical possession had been taken over from the erstwhile landowner on 07.12.1991, therefore in this context the plea raised about taking over the possession illegally was held to be highly belated. Here the facts are very different. The possession still continues with the petitioners and there is nothing to show that it was taken by the State. As regards the case of Shiv Ram Singh (supra) here also the allegation was of dispossession from land without due notice under Section 10(5) and as it was a belated plea, therefore, the same was not acceptable. In the case of Dhani Ram (supra) a notification under Section 4 of the Act, 1976 was challenged belatedly, which is not the case here. Therefore, none of these decisions supports the case of the opposite parties.

17. In view of the above discussion, the petition stands allowed. we direct the concerned revenue authorities to delete the endorsement contained in the remarks column of the Khatauni, copy of which is annexed as Annexure 3A and restore the name of the petitioners in respect of the land in question in the revenue record, so far as their share therein is concerned. This is without prejudice to the rights of any third person who may claim against the petitioners or the State.

Order Date :- 30.7.2021

Arvind