Dinesh Kumar And 2 Others vs State Of U.P. And 4 Others
2023 Latest Caselaw 8905 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 3
 

 
Case :- WRIT - C No. - 39368 of 2022
 

 
Petitioner :- Dinesh Kumar And 2 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Tarkeshwar Mishra,Pradhumn Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Abhinava Krishna Srivastava,Anand Prakash Paul
 

 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Anish Kumar Gupta,J.

1. Case called out.

2. None appears for the petitioners to press the writ petition.

3. Learned Standing Counsel representing the respondent nos. 1, 2 & 3 and Sri Abhinava Krishna Srivastava, learned counsel for respondent no. 4 are present.

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

"I. Issue a writ, order or direction in the nature of mandamus directing the concerned respondent not to dispossess the petitioners from their land as well as not to interfere in peaceful possession of petitioners over the land in question."

5. On 15.02.2023, this Court passed the following order:

"Heard Shri Tarkeshwar Mishra, learned counsel for the petitioners, Shri Abhinava Krishna Srivastava, learned cousnel for the respondent and Shri A.P. Paul, learned counsel for the respondent no. 4.

The present writ petition has been filed inter alia for the following relief:

"Issue a writ, order or direction in the nature of mandamus directing the concerned respondent not to dispossess the petitioners from their land as well as not to interfere in peaceful possession of petitioners over the land in question."

At the very outset, relying on disputed property mentioned in para 20 of the present writ petition, learned counsel for the respondents have raised preliminary objection regarding the maintainability of the writ petition and submit that for the same property other claimants have also preferred another writ petition bearing Writ -C No. 31968 of 2022 (Pratap Singh and 7 others vs. State of U.P. and 4 others) which was dismissed by the coordinate Bench of this Court vide order dated 01.02.2023, wherein, it is observed that petitioners has already preferred the writ petition bearing Writ-C No. 69503 of 2005 for the same cause of action, which was filed by the petitioners along with mother namely, Smt. Savitri Singh, brothers and sisters, which has already been dismissed by the coordinate Bench on 15.07.2014 and against which the petitioners filed SLP (C) No. 28863 of 2014 and the same was also dismissed by the Hon'ble Apex Court vide order dated 21.07.2021.

In this background, learned counsel for the respondents submit that once the writ petition was dismissed, treated to be second writ petition and again for the same property petitioners have preferred the present writ petition, the writ petition is liable to be treated as third writ petition and the same may be dismissed with cost.

Confronted with the situation, learned counsel for the petitioner prays for and is accorded two days time to seek instruction in the matter.

Put up this matter as fresh on Monday, 20.02.2023."

6. Learned Standing Counsel and learned counsel for respondent no. 4 jointly submit that a ceiling proceeding with respect to the land in question was initiated and concluded about more than three decades ago and possession under Section 10(6) of the Urban Land (Ceiling & Regulation) Act, 1976 was taken by the State-respondents on 23.03.1988 and the possession so taken was transferred to the respondent no. 4/Kanpur Development Authority on 27.01.1993. The petitioners have filed the present writ petition after more than three decades of conclusion of the proceedings under the Act, 1976 and after about 24 years of enactment of the Repealing Act, 1999.

7. Thus, the present writ petition has no merits and it is also not entertainable on principles settled by Hon'ble Supreme Court and this Court.

8. 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 ofSection 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 onSection 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 underSection 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 aRepeal Acttempted 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 inSection 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 underSection 10(6). The question whether breach ofSection 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, whatSection 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 underSection 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 underSection 10(5)will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes ofSection 3of the Repeal Act. That is because Bhabadeb Sarma-erstwhile owner had not made any grievance based on breach ofSection 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 underArticle 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)

9. 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)

10. For all the reasons aforestated 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 :- 27.3.2023

Shubham Arya