Dulajaan And 3 Others vs State Of U.P. And 3 Others
2023 Latest Caselaw 3278 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 3
 

 
Case :- WRIT - C No. - 32689 of 2022
 

 
Petitioner :- Dulajaan And 3 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Satish Chandra Pandey
 
Counsel for Respondent :- CSC,Arun K. Singh Deshwal,Dharmendra Singh Chauhan
 

 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Jayant Banerji,J.

1. Heard Sri Satish Chandra Pandey, learned counsel for the petitioners, learned Standing Counsel for the State-respondents and Sri D.S. Chauhan, learned counsel for respondent no.4.

2. This writ petition has been filed praying for the following relief/s:

"(i) Issue a writ, order or direction in the nature of mandamus directing the respondents not to dispossess the petitioners from Gata No. 444 b area 2155.72 sq. meter situated at village Dakka, Tehsil and District Moradabad."

3. On 24.1.2023, this Court passed the following order:-

"Heard Sri Satish Chandra Pandey, learned counsel for the petitioners and learned standing counsel.

According to the petitioners, their father namely Julla was the owner of Khasra Plot No.444B measuring 4155.72 square meters out of which, an area of 2155.72 was found surplus as per provisions of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act, 1976'). Therefore, a case under the Act, 1976 being Case No.853/331, was instituted and ultimately the land was declared surplus and an order under Section 10(2) of the Act, 1976 was passed on 09.11.1978 and it was sent for publication in the Gazette under Section 10(3) of the Act, 1976. The land was declared surplus by order dated 21.01.1978 passed by the competent authority under the Act, 1976 in Case No.853/331 under Section 8(4)/9 of the Act, 1976. As per report dated 29.12.1983, the possession was taken over the surplus land and an order was passed for mutation of the name of the State in the revenue records. However, the petitioners have neither stated in the writ petition nor have filed copy of Khatauni to indicate that whose name is recorded in the revenue records (Khatauni) and from which date.

Learned standing counsel prays for and is granted a week's time to obtain instructions. Along with instructions, copy of the first Khatauni when State's name was mutated and the latest Khatauni with respect to the land in question shall also be placed before us.

The petitioners are also directed to file a supplementary affidavit bringing on record copies of relevant documents to indicate as to when the name of the petitioners or their father was struck off from the Khatauni and the name of the State was mutated. He shall also file copy of latest Khatauni with respect to the plot in question.

Put up as a fresh case on 02.02.2023 at 10:00 A.M."

4. In compliance to the aforequoted order, the petitioners have not filed any supplementary affidavit to bring on record copies of relevant documents to indicate as to when the name of the petitioners or their father was struck off from the Khatauni and the name of the State was mutated. On the other hand, the State-respondents, in compliance to the aforequoted order have produced before us the instructions of the District Magistrate, Moradabad bearing letter No. 282 dated 31.1.2023 annexing therewith various documents including those which were directed to be produced under the above-noted order.

5. We have perused the record of the writ petition and the aforesaid instructions of the District Magistrate, Moradabad. We find that with respect to Plot in question i.e. Khasra plot no. 444M., situate in village Dhakka, Tehsil and District Moradabad, Ceiling Case No. 853/331 was registered under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act, 1976). An order dated 21.1.1978 under Section 8(4) of the Act, 1976 in respect of declared surplus land measuring 2155.72 sq. meter with respect to Khasra Plot no. 444M was passed and publication in the gazette under Section 10(1) of the Act, 1976 was made on 14.7.1978. The publication under Section 10(3) of the Act, 1976 was made on 14.2.1979. Thereafter, a notice dated 27.11.1982 under Section 10(5) of the Act, 1976 was issued by the respondent no.3 to the original tenure holder i.e. Julla son of Bashir, resident of village Dhakka, Tehsil and District Moradabad which was served upon his wife, namely, Smt. Sakool. Thereafter, as per report of the Tehsildar, physical possession of the aforesaid surplus declared land was taken on 29.12.1983 in presence of the witnesses including village Pradhan, namely, Puran Singh . A letter No. 332 dated 4.9.1990 was issued by the respondent no.3 to the Tehsildar for mutation of name of the State over the aforesaid surplus declared land. The aforesaid land was transferred to the Bareilly Development Authority, Bareilly on 30.3.1993.

6. It is pertinent to mention here that a notice dated 21.2.1987 under Section 11(8) of the Act, 1976 was issued by the respondent no.3 to the original tenure holder i.e. Sri Julla inviting his objection with respect to the compensation of Rs. 8522.73 paise for the aforesaid surplus declared land. This notice was personally served to the original tenure holder i.e. Julla on 24.2.1987 and an order for payment of compensation was issued by the respondent no.3 on 21.3.1987 and notice in this regard was sent to the petitioners' father, namely, Julla which was personally served upon the aforesaid Julla. The name of the State, thus stood recorded in the revenue record i.e. Khatauni as is evident from copies of the Khatauni filed for the Fasli Year 1392-1397 and 1398-1400 which it continued as per copy of the Khatauni for the Fasli Year 1419-1424. Copies of all the aforenoted documents have been filed with the aforesaid instructions dated 31.1.2023 which is kept on record.

7. There is nothing on record to show that the petitioners have ever filed any appeal to challenge the order under Section 8(4) or any of the order /proceedings as provided under Section 33 of the Act, 1976 or has challenged order under Section 11 in the appeal under Section 12 of the Act, 1976. Thus, the entire proceedings under the Ceiling Act, 1976 stood concluded much before the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as the Repealing Act, 1999). This writ petition has been filed after more than three decades of conclusion of the entire proceedings under the Act, 1976. The name of the State is continued in the revenue record for the last more three decades. It is now after more than three decades, the petitioners have filed the present writ petition praying for the relief as aforequoted.

8. From the facts as briefly noted above, it is evident that the petitioners are attempting to take benefit of the Repealing Act, 1999 on the ground of their alleged possession over the disputed land, whereas the entire proceeding under the Act, 1976 has been concluded several decades ago. There is nothing on record to show that the petitioners are in actual physical possession over the land in question. On the contrary, the name of the State continues to be recorded in the revenue records, i.e. Khatauni from several decades.

9. In the case of State of Assam vs. Bhaskar Jyoti Sarma and others, (2015) 5 SCC 321 (Paras-16, 17 and 19), Hon'ble Supreme Court held as under:-

"16. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure.

17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram's case (supra). That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram's case (supra) considering whether the word 'may' appearing in Section 10(5)gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5)and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of law did not fall for consideration in that case. In our opinion, what Section 10(5)prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because Bhabadeb Sarma-erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so.

19. In support of the contention that the respondents are even today in actual physical possession of the land in question reliance is placed upon certain electricity bills and bills paid for the telephone connection that stood in the name of one Mr. Sanatan Baishya. It was contended that said Mr. Sanatan Baishya was none other than the caretaker of the property of the respondents. There is, however, nothing on record to substantiate that assertion. The telephone bills and electricity bills also relate to the period from 2001 onwards only. There is nothing on record before us nor was anything placed before the High Court to suggest that between 7th December, 1991 till the date the land in question was allotted to GMDA in December, 2003 the owner or his legal heirs after his demise had continued to be in possession. All that we have is rival claims of the parties based on affidavits in support thereof. We repeatedly asked learned counsel for the parties whether they can, upon remand on the analogy of the decision in the case of Gyanaba Dilavarsinh Jadega (supra), adduce any documentary evidence that would enable the High Court to record a finding in regard to actual possession. They were unable to point out or refer to any such evidence. That being so the question whether actual physical possession was taken over remains a seriously disputed question of fact which is not amenable to a satisfactory determination by the High Court in proceedings under Article 226 of the Constitution no matter the High Court may in its discretion in certain situations upon such determination. Remand to the High Court to have a finding on the question of dispossession, therefore, does not appear to us to be a viable solution."

(Emphasis supplied by us)

10. The aforesaid judgment of Hon'ble Supreme Court in the case of Bhaskar Jyoti Sarma and others (supra) has been followed by a coordinate bench of this Court in the case of Shiv Ram Singh vs. State of U.P. and others, 2015 (7) ADJ 630 and the writ petition was dismissed on the ground of laches, observing as under:

"We must also advert to another aspect of the matter particularly having regard to the recent decision of the Supreme Court in Bhaskar Jyoti Sarma (supra). The petitioner moved the first writ petition in 2002 nearly three years after the Repeal Act had come into force. After the earlier writ petition was disposed of by directing the District Magistrate to pass an order on the representation of the petitioner, an order was passed by the District Magistrate on 10 May 2007. The petitioner thereafter waited for a period of over two years until the present writ petition was filed in July 2009. If the petitioner had been dispossessed of the land without due notice under Section 10(5), such a grievance could have been raised at the relevant time. As a matter of fact, it has been the case of the State all along that a notice under Section 10(5) was, in fact, issued in the present case which would be borne out from the original file which has been produced before the Court. The issue is whether such a grievance could be made long after, before the Court. The petitioner had waited for nearly three years after the Repeal Act came into force to file the first writ petition and thereafter for a period of over two years after the disposal of the representation despite the finding of the District Magistrate that possession was taken over on 25 June 1993. In our view, such a belated challenge should not, in any event, be entertained."

(Emphasis supplied by us)

11. For all the reasons aforestated and in view of the of the aforesaid and also in view of the law laid down by Hon'ble Supreme Court in the case of Bhaskar Jyoti Sarma and others (supra) and a coordinate bench decision of this Court in the case of Shiv Ram Singh (supra), we do not find any merit in this writ petition, apart from the fact that it is also hit by laches. Consequently, the writ petition is dismissed.

Order date: 02.02.2023

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