Raj Kumar Kushwaha And Another vs State Of U.P. And 4 Others
2023 Latest Caselaw 3761 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 03
 

 
Case :- WRIT - C No. - 32385 of 2022
 

 
Petitioner :- Raj Kumar Kushwaha And Another
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Yogesh Mishra
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Anish Kumar Gupta,J.

1. Heard Sri Yogesh Mishra, learned counsel for the petitioners and the learned standing counsel.

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

"A) Issue a writ, order or direction in the nature of mandamus directing the respondents to correct the revenue record in the name of the petitioners as Bhumidhars in respect of the plot Nos. 72m- 3.029, 73m- 0.034, 74m- 0.034, 86m- 0.046, 87m -0.046, 88m- 0.069, 98m- 0.023, 99m- 0.012, 100m- 0.071, 101m- 0.024, 102m- 0.035, 103m- 0.035 Total = 12 plots = 7.421 Hectares of Khata No. 51 situated at Village Lekhrajpur, Jhunsi, Tehsil Phoolpur, District- Prayagraj and not to take possession from the petitioners and to abate the proceeding in case No. P-144 of 1976, State Vs. Moti Lal, under the provision of Urban land (Ceiling &Regulation) Repeal Act, 1999 (herein after referred to as 'the Repeal Act, 1999). "

3. Petitioner No.1 claims himself to be the grandson of the original tenure-holder Moti. Petitioner No.1 claims herself to be the mother of the petitioner No.1.

4. In paragraphs-5, 6 and 7 of the writ petition, sworn on the basis of partly personal knowledge and partly on record, the petitioners have admitted that the original tenure holder Moti has filed a ceiling return which was numbered as P-144/1976 (State vs. Moti). A notice under Section 8(3) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as ''the Act, 1976') by which final draft statement was issued and the plots in question were declared as surplus land. It has been further admitted that after the order dated 13.09.1982, proceeding under Section 10(1) was initiated in respect of the plots in question declared as surplus land and the name of the State was mutated in the Khatauni of Fasli Year 1402-1407 (sometimes in the year 1995). Notice under Section 10(5) of the Act, 1976 was issued in September, 1992. Khatauni of Fasli Year 1408-1412 shows that the plots in question are recorded in the Khatauni in the name of State Government, which is also continuing in current Khatauni. It has not been disclosed by the petitioners that when the original tenure holder Moti has died. His son Basant Lal died on 17.09.2021. Thus, it stands proved that he has also not raised any objection with respect to the land declared surplus and possession of the State Government over the land in question. It is after about 40 years of the order under Section 8(4), after 30 years of the notice under Section 10(5) of the Act, 1976 or after about 28 years of mutation of the name of the State Government in the revenue records and without any objection raised either by the original tenure-holder Moti or his son Basant Lal; the petitioners have filed the present writ petition praying for the aforenoted relief.

5. In the case of State of Assam vs. Bhaskar Jyoti Sharma 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)

6. The aforesaid judgment of Hon'ble Supreme Court in the case of Bhaskar Jyoti Sharma 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)

7. 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 Sharma 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 :- 07.02.2023

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