Surendra Mishra And Others vs State Of U.P. Thru Secy. And Others
2023 Latest Caselaw 8904 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Reserved
 
In Chamber
 

 
Case :- WRIT - C No. - 59983 of 2012
 

 
Petitioner :- Surendra Mishra And Others
 
Respondent :- State Of U.P. Thru Secy. And Others
 
Counsel for Petitioner :- Smt. Priyanka Srivastava,Gopal Narain Srivastava,Shyam Narain
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Siddhartha Varma, J.

Hon'ble Ajit Singh, J.

Initially the petitioners had challenged the proceedings by which the petitioners' land in plot nos.587, 588, 589, 139, 42 and 463 of village Haru Nagla, District Bareilly was declared excess to the tune of 15478.05 sq. meters by means of a writ petition being Writ-C No.23270 of 1996. This writ petition came to be decided on 29.3.2012 by the following order :-

"1. The counsel for the petitioner is permitted to implead the Collector, Bareilly as respondent no. 4.

2. We have heard counsel for the petitioner and standing counsel for the respondents.

3. The land of the petitioner/petitioner's predecessor was declared as surplus land under the Urban Ceiling Act. This Act has been repealed. According to the petitioner, he is still in actual possession over the land declared as surplus land and as such possession can not be taken from him. He further submits that even if possession is taken from him on paper, it should be restored to him as no compensation has been paid to him and in any case he is willing to refund the amount.

4. It is not disputed that the Act has been repealed and further action can only be taken in accordance with the repealing Act.

5. In the circumstances of the case, the petitioner may file a representation before respondent no. 4 within two months. In case any such representation is filed, it may be decided by respondent no. 4 by a speaking order, if possible, within three months from the date of receipt of the representation. The petitioner will file a certified copy of this order; other necessary documents and a duly stamped self-addressed envelope along with his representation. Respondent no. 4 after taking decision will communicate the same to the petitioner. Till the disposal of the petitioners' representation the parties shall maintain status quo.

6. With these directions the writ petition is disposed of."

If the order dated 29.3.2012 is perused, it becomes clear that this Court because of the fact that the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as the "1976 Act") had been repealed by "The Urban Land (Ceiling and Regulation) Repeal Act, 1999" (hereinafter referred to as the "1999 Act"), the matter had been sent before the District Magistrate, Bareilly for considering as to whether the petitioners had been in possession over the land in question on the date when the 1999 Act had come into force i.e. on 18.3.1999. Thereupon, when the District Magistrate on the basis of the fact that possession had been taken vide a document dated 27.2.1986, rejected the application/representation of the petitioners, the instant writ petition was filed.

Essentially, learned counsel for the petitioners submitted that the petitioners' father had continued to be in possession despite the orders passed under section 8 and the Gazette made under section 10(3) of the 1976 Act. He has submitted that the petitioners' father if had given the possession of the excess land in question, as per the procedure prescribed under section 10(5) of the 1976 Act, then no proceeding under section 10(6) of the 1976 Act would have been initiated. In the instant case, learned counsel for the petitioners submits that the petitioners' father had not given possession as per the orders under section 10(5) of the 1976 Act and, therefore, it appears that some sham proceeding, behind the back of the petitioners' father, were undergone and on 27.2.1986 a Dakhalnama was drawn wherein there was only the government authority who was shown to have taken possession and the names of Brij Bahadur Gupta and Ashok Kumar Pathak, the two witnesses, were there. The giving of possession could not be deciphered from the memo of possession. Learned counsel for the petitioners, therefore, submitted that this document was absolutely a void document which did not transfer the possession of the petitioners' father from the excess land. Further relying upon a judgment of the Supreme Court in State of U.P. vs. Hari Ram reported in (2013) 4 SCC 280, learned counsel for the petitioners submitted that there was no notice preceding the proceedings under section 10(6) of the 1976 Act. Learned counsel for the petitioners submitted that as per paragraph 37 of the judgment cited above, a notice ought to have preceded action under section 10(6) of the 1976 Act. Since, learned counsel for the petitioners has heavily relied upon paragraph 37 of the judgment cited above, the same is being reproduced here as under: -

"37. The requirement of giving notice under Sub-sections (5) and (6) of Section 10 is mandatory. Though the word 'may' has been used therein, the word "may" in both the Sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under Sub-section (5) or Sub-section (6) of Section 10 is that it might result in the land holder being dispossessed without notice, therefore, the word "may" has to be read as "shall"."

Under such circumstances, learned counsel for the petitioners submitted that there was no compliance of the provisions of section 10(6) of the 1976 Act and also he submitted that the document dated 27.2.1986 was a sham document by which no possession had been transferred. He, therefore, submitted that there was no possession transferred of the excess land.

Learned counsel for the petitioners also submitted that the neighbouring land was that of one Ram Kumar Mishra, the brother of the petitioners and under similar circumstances when he had also filed a writ petition being Writ Petition No.11150 of 2000 (Ram Kumar Mishra vs. Competent Authority & Anr.) basing his case on the fact that no possession of transfer had taken place then the Court by means of an order dated 9.8.2019 had allowed the writ petition. In that case also it was found that there was no notice preceding the action under section 10(6) of the 1976 Act and also the document by which the possession was sought to be taken was a sham document.

Learned Standing Counsel, however in reply, has submitted that the petitioners' possession was no longer there on the plots in question and that the proceedings for the payment of compensation had also been initiated.

Having heard Sri Gopal Narain, learned counsel for the petitioners and learned Standing Counsel, the Court is of the view that the writ petition deserves to be allowed. The Court does not find any notice which preceded the proceedings under section 10(6) of the 1976 Act. The Court also finds that the document dated 27.2.1986 is a sham transfer of possession as no person has been shown to be transferring the land.

Also, we find that under similar circumstances, Writ Petition No.11150 of 2000 (Ram Kumar Mishra vs. Competent Authority & Anr.) which was decided on 9.8.2019 had been allowed. We also find that the order dated 29.8.2012 passed by the District Magistrate, Bareilly is based absolutely on irrelevant facts.

Under such circumstances, the order dated 29.8.2012 is quashed and is set-aside. The possession of the land of the petitioners which was declared excess in plot nos.587, 588, 589, 139, 42 and 463 of village Haru Nagla, District Bareilly shall continue to remain with the petitioners. The respondents are restrained from interfering with the possession of the petitioners over the land in question.

The writ petition succeeds and is, accordingly, allowed.

Order Date :- 27.03.2023

GS

(Siddhartha Varma, J.)

(Ajit Singh, J.)