Allahabad High Court

Satish Kewlani vs State Of ... on 17 May, 2023

Bench: Rajan Roy, Manish Kumar




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

									     A.F.R.
 
									RESERVED
 
                      Neutral Citation No. - 2023:AHC-LKO:34821-DB
 
Case :- WRIT - C No. - 8724 of 2013
 

 
Petitioner :- Satish Kewlani
 
Respondent :- State Of U.P.Thr.Prin.Secy.Deptt.Of Revenue Lucknow And Ors.
 
Counsel for Petitioner :- Ved Prakash,Dinesh Kumar Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajan Roy,J.

Hon'ble Manish Kumar,J.

Heard.

The present writ petition has been preferred with the following main prayers:-

"i) Issue a writ, order or direction in the nature of Mandamus thereby commanding the opposite parties not to disturb the peaceful possession of the petitioner over Gata No. 72, Khata No. 178, area 1606.13 sq. mtrs. situated at village Chandan, Pargana, Tehsil and District Lucknow.

ii) Issue a writ, order or direction in the nature of mandamus directing the opposite parties to restore the entries in the name of the petitioner over Gata No. 72, Khata No. 178, area 1606.13 sq. mtrs. situated at Village Chandan, Pargana, Tehsil and District Lucknow, as it was prior to 4.2.2008."

Brief facts of the case are that Gata No. 72 (1606.13 sq. mtrs.) situated at village Chandan, Pargana, Tehsil and District Lucknow was recorded in the name of Sukkha, the original tenure holder who was its Bhumidhar with transferable rights. A notice under Section 8(3) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'Act, 1976') was issued in respect of aforesaid land and as per the opposite parties Sukkha did not respond, therefore, the said land measuring 1606.13 sq. mtrs. was declared surplus. On 09.09.1978, a notification under Section 10(1) of the Act, 1976 was issued. Thereafter on 12.05.1990, notification under Section 10(3) of the Act, 1976 was published. Sukkha was directed to handover possession of the said land on 24.01.1991, as claimed by the opposite parties, in view of Section 10(5) of the Act, 1976. Thereafter, the said land, as per opposite parties, was transferred to Lucknow Development Authority in view of Government Order dated 11.12.1996 and Section 10(6) of the Act, 1976, though the exact date of this transfer has not been mentioned. In fact in the counter affidavit of the State though it is mentioned that Sukkha was asked to handover possession of the land, but it is nowhere mentioned that he did handover or surrender his possession to the State authorities voluntarily or that it was forcibly taken. No proof of such handover or taking over of possession has been annexed by the opposite parties in the counter affidavit. Only a copy of notice under Section 10(5) of the Act, 1976 has been annexed which by itself does not prove handing over or taking over of actual possession. On 11.03.1999, the Urban Land (Ceiling and Regulation) Repeal Ordinance, 1999 was issued which was adopted by the State Legislature of U.P. under Article 252(2) of the Constitution of India on 18.03.1999. This Ordinance was replaced by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act No. 5 of 1999) (hereinafter referred to as the 'Repeal Act, 1999') by which the Act, 1976 was repealed. As per Section 5(2) of this Act, 1999, notwithstanding repeal of the Ordinance of 1999, anything done or action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of the Act, therefore, the adoption dated 18.03.1999 by State of U.P. holds good for the Act, 1999 also.

Before referring to the provision of Repeal Act, 1999, it is relevant to mention that at some point of time Sukkha died and his daughter succeeded him with regard to his land and after coming into force of the Repeal Act, 1999, she executed a sale- deed in favour of the petitioner on 18.09.2000 as per the supplementary affidavit of the petitioner dated 11.02.2020, copy of which was served on the State, contents of which have not been denied by it. Copy of sale-deed is also annexed with it. Based on the said sale deed, petitioner was recorded in the revenue records as its Bhumidhar with transferable rights. Copy of khatauni pertaining to Gata No. 72 is annexed as Annexure no. 1 to the petition. By then, the State was not even recorded in respect of the said land and it was so recorded only on 04.02.2008. Sections 3 & 4 of the Repeal Act, 1999 read as under:-

"3. Saving.- (1) The repeal of the principal Act shall not affect -

(a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.

(b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary;

(2) Where -

(a) any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with respect to such land then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.

4. Abatement of legal proceedings -- All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:

Provided that this section shall not apply to the proceedings relating to sections 11, 12, 13 & 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority."

These provisions of the Repeal Act, 1999 were considered by Hon'ble the Supreme Court in the case of State of U.P. vs Hari Ram [(2013) 4 SCC 280] and it was inter alia held that vesting under Sub Section (3) of Section 10 meant vesting of title absolutely and not possession, though nothing stands in the way of a person voluntarily surrendering or delivering possession. It further held that it was mandatory for the State to issue a notice under Section 10 (5) of the Act, 1976 directing the petitioner/land holder to deliver possession to the State, failing which it was mandatory for the State to take forceful possession under Section 10(6) of the Act, 1976. It went on to hold as under:-

"42. The 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 18.3.1999. 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 4 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 4 of the Repeal Act."

Thus, vesting of land under Section 10(3) of the Act, 1976 does not mean actual physical possession and such vesting also does not by itself render the possession of tenure holder illegal. Thus the crux of the issue is whether in the case at hand, actual/de facto possession was taken or voluntarily given prior to coming into force of Repeal Act, 1999 or not. If not, then the benefit of the Repeal Act will be available to the petitioner. If it has been taken, then it will not be available.

Now the mode/procedure for taking possession was discussed by this Court in the case of Yasin vs. State of U.P. and Ors. [(2014) 4 ADJ 305 (DB)]. Paragraphs 15 & 16 of the said judgment reads as under:-

"15. In the light of the aforesaid, 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. The procedure for taking possession 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. Paragraph 3 of the Directions is extracted hereunder:

'3. Procedure for taking possession of vacant land in excess of Ceiling Limit .--(1) The Competent Authority will maintain a register in Form No. ULC -1 for each case regarding which notification under sub-section (3) of Section 10 of the Act is published in the gazette.

(2) An order in Form No. ULC-II will be sent to each landholder as prescribed under sub-section (5) of Section 10 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No. ULC-1.

(3) On possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) of Section 10 of the Act, entries will be made in a register in Form ULC-III and also in Column 9 of the Form No. ULC-I. The Competent Authority shall, in token of verification of the entries, put his signature in Column II of Form No. ULC/1 and Column 10 of Form No. ULC-III.'

16. From the aforesaid, 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 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.L.C.-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. The Competent Authority is also required to place his signature endorsing the date of taking possession."

The directions of 1983 referred in the above quoted judgment have been issued under Section 35 of the Act, 1976.

The Division Bench in the case of Yasin (supra) after considering various decisions of Hon'ble Supreme Court on the mode of possession also observed that normal mode of taking possession is drafting a panchnama in the presence of panchas and taking possession and giving delivery of possession to the beneficiaries, if any.

There is no such pleading in the counter affidavit nor any documents annexed to demonstrate the taking over of possession in terms of the aforesaid procedure prescribed. As already stated, in fact, even bereft of the aforesaid procedure, there is no such averment in the counter affidavit of the State that de facto/actual possession was taken over by it of the land in question. It is also not the case that the actual possession was voluntarily delivered by the tenure holder.

From perusal of the प्रपत्र संख्या न० भू ० अ ० सी ० -दो issued under Section 10 (5) of the Act, it shows the name of Sukkha the original tenure holder but nothing has been found from the record that at any point of time, either the original tenure holder or the petitioner has ever given physical possession voluntarily as per Section 10 (5) of the Act. The counter affidavit also does not say that actual physical possession was handed over to Lucknow Development Authority and it has made any construction on it. There is no documentary proof at all in the light of Division Bench judgments of this Court in the cases of Yasin (supra) and Babu and Ors. vs. State of U.P. thru. Secy., Urban Land Ceiling, Lucknow & Ors. (Misc. Bench No. 1960 of 2019) to show voluntary surrender of possession by original tenure holder or forcible de facto possession by the State.

The 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.L.C.-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 Section 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. In this case, no such record is available which could help the opposite parties. 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.

The petitioner has specifically pleaded in para 6 of the writ petition that possession of the land was never taken. It reads as under:-

"6. That the notification under Section 10(1) of the Act No. 33 of 1976 was made vide notification No.8540/3228 dated 9.9.1978 but the possession was not taken."

The aforesaid para has been replied in para 24 of the counter affidavit, which is being quoted hereinbelow:-

"24. That the contents of para 6 of the writ petition need no comment."

Further in para 11 of the writ petition, he has mentioned that he continues to be in actual and physical possession of the land. It reads as under:-

"11. That the petitioner respectfully submits that after the execution of the sale deed executed by opposite party No. 4 in favour of the petitioner his name was mutated in the revenue records and he is continuing in actual and physical possession of the land in question."

This has been replied by the State in para 26, as under:-

" That the contents of para 11 of the writ petition as stated are denied in view of the submissions made hereinabove."

On a perusal of the other paragraphs of the counter affidavit, we do not find any pleading and proof referred in its support about actual physical possession having been delivered or taken to/by State authorities. In fact, para 24 of the counter affidavit accepts the case of the petitioner. The possession and transfer, which have been referred in the counter affidavit of the State, are only on paper. The original records in this regard which were produced before us also do not contain any proof of such actual possession having been taken or delivered voluntarily.

Possession of the tenure holder or petitioner cannot be termed as illegal merely because of vesting of the land in the State in view of the decision of Hon'ble Supreme Court in the case of Hari Ram (supra), as has already been held in the case of Babu & Ors. (supra). In view of the above, the land owner or holder can claim benefit of Sections 3 & 4 of the Repeal Act, 1999.

As regards, the contention of Sri Khare that the petition has been filed belatedly, this is also irrelevant as the petitioner is still in possession of the land and its possession was never actually taken by the State. Moreover, the petition was filed after petitioner come to know about the entry made on 04.02.2008 in the records, illegally. This aspect has also been considered by a Division Bench judgment of this Court in the case of Babu and Ors. (supra). The relevant extract of the said judgment is quoted hereinbelow:

"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 land owner 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."

Against the judgment dated 30.07.2021 in the case of Babu & Others (supra), an S.L.P. bearing No. 4160/2022 was preferred by the State of U.P. & Ors. vs. Babu and Ors., which was dismissed by Hon'ble the Supreme Court vide its order dated 14.03.2022.

As there is nothing on record to establish voluntary surrender of land by Sukkha under Section 10(5) or forcible actual/de facto possession by the State of U.P. under Section 10(6) therefore, the Repeal Act, 1999 is clearly attracted and the petitioner is entitled to the benefit of Sections 3 and 4 of the Repeal Act, 1999.

Once we have arrived at the conclusion that actual physical possession was never taken by the State then in view of the Repeal Act, 1999, all proceedings under the repealed Act, 1976 and orders passed therein stood abated as on 18.03.1999/22.03.1999 when the Act, 1999 came into force. The Act, 1976 itself ceased to be operative from the said date, therefore, it cannot be said that the sale of the land by daughter of Sukkha in favour of petitioner on 18.09.2000 is hit by any provisions of the Act, 1976, such as, Section 10(4).

The contention of Sri Khare in this regard based on the decision of Hon'ble Supreme Court in the case of State of U.P. and another Vs. Adarsh Seva Sahkari Samiti Ltd.; (2016) 12 SCC 493 that petitioner being a subsequent purchaser is not entitled to any relief is misconceived. In the case of Adarsh Seva Sahkari Samiti Ltd. (supra), the sale-deed of the land which was the subject matter of ceiling proceedings was sold/purchased in the year 1991-92 when the Act, 1976 was in operation and the land had vested in the State and the sale was prohibited by Section 10(4) of the said Act, but, in this case, the Act, 1976 ceased to be operative on 18.03.1999/22.03.1999 when it stood repealed and sale of the land by the tenure holder took place on 18.09.2000 in favour of petitioner, therefore, it was not hit by Section 10(4) as it was no longer in existence. Nothing in law prohibited the recorded tenure holder from selling the said land to petitioner on the said date. The decision in Adarsh Seva Sahkari Samiti Ltd. (supra) is not applicable to the facts of this case.

In view of the above discussion, the petition is allowed. We direct the concerned revenue authorities to delete the endorsement contained in the remarks column of the Khatauni, regarding land being surplus under the Ceiling Act, copy of which is annexed as Annexure 1 and restore the name of the petitioner in respect of the land in question in the revenue record, so far as his share therein is concerned. This is without prejudice to the rights of any third person who may have a claim against the petitioner.

The original records which were produced and were retained by the Court, are returned herewith to the counsel for the State.

[Manish Kumar, J.] [Rajan Roy, J.]

Order Date :- 17/05/2023

Nitesh