Ankush Pandey vs State Of Uttarakhand & Others
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Uttarakhand High Court

Ankush Pandey vs State Of Uttarakhand & Others on 25 June, 2025

Author: Manoj Kumar Tiwari

Bench: Manoj Kumar Tiwari

                                                          2025:UHC:5380-DB


     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
               Special Appeal No. 541 of 2019

Ankush Pandey                                              ... Appellant

                                   Versus

State of Uttarakhand & Others                             ... Respondents

     Mr. Siddhartha Sah, Advocate, for the appellant.
     Mr. S.K. Nailwal, Standing Counsel, for the State.
     Mr. Rahul Consul, Advocate, for the MDDA.



                             JUDGMENT

Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Subhash Upadhyay, J.

(Per: Hon'ble Manoj Kumar Tiwari, J.)

This appeal is filed by writ petitioner in Writ Petition (MS) 1819 of 2016. In the said writ petition, petitioner had sought the following relief:

"(i) issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere in the property of the petitioner in question in any manner whatsoever."

2. Writ petition was dismissed by learned Single Judge vide judgment dated 27.3.2019. Operative portion of the said judgment is extracted below:

"23. The fact remains that so far as (1) the declaration of the land as surplus is concerned that has attained the finality by judgment dated 18.04.1987 (2) the procedure under Sub-section (5) of Section 10 of the Act of 1976 was duly followed with after prior notice to the predecessors owner is established possession order 25.09.1989 (3) admittedly, the possession was taken over by the competent authority and handing

2025:UHC:5380-DB over of it to the MDDA was made even prior to the repealment of the Act of 1999 and lastly, if at all, any defence, which could be taken, it could have been by the predecessors owner of the petitioner who ought to have pleaded it upto the stage when, the proceedings were before the Apex Court.

Having not done so, at this stage, when the petitioner claims his right being purchaser from the heirs of the predecessors owner, who were succeeded by virtue of the Will executed in 1993, after the land being declared as surplus in 1997 and the same being, vested with the State Government and handing over its possession to the MDDA in 1989, no right vested with the predecessors owner to bequeath the property to his heirs. Thus, non compliance of the directions as argued by the learned counsel for the petitioner is too not acceptable by this Court in the absence of any such case pleaded by them as their predecessors at any stage of the proceedings, regarding non compliance of direction under Section 35 of the Act.

24. Consequently, no writ of mandamus as prayed for could be issued for handing over of the possession of the land, which has been ultimately declared as surplus. Thus, the Writ Petition fails and is hereby accordingly dismissed."

3. Mr. Rahul Consul, learned Counsel appearing for MDDA, relied upon a judgment dated 13.10.2023, rendered by Hon'ble Supreme Court in Civil Appeal No. 5721 of 2023, State of U.P. & Anr. V. Ehsan & Anr., for contending that for the relief claimed by the petitioner, writ petition would not be maintainable. Para 30, 32, 35, 36 and 37 of the said judgment are reproduced below:

"30. No doubt, in a writ proceeding between the State and a landholder, the Court can, on the basis of materials/evidence(s) placed on record, determine whether possession has been

2025:UHC:5380-DB taken or not and while doing so, it may draw adverse inference against the State where the statutory mode of taking possession has not been followed [See State of UP vs. Hari Ram (supra)]. However, where possession is stated to have been taken long ago and there is undue delay on the part of landholder in approaching the writ court, infraction of the prescribed procedure for taking possession would not be a determining factor, inasmuch as, it could be taken that the person for whose benefit the procedure existed had waived his right thereunder [See State of Assam vs. Bhaskar Jyoti Sarma, (supra)]. In such an event, the factum of actual possession would have to be determined on the basis of materials/evidence(s) available on record and not merely by finding fault in the procedure adopted for taking possession from the land holder. And if the writ court finds it difficult to determine such question, either for insufficient/ inconclusive materials/evidence(s) on record or because oral evidence would also be required to form a definite opinion, it may relegate the writ petitioner to a suit, if the suit is otherwise maintainable.

32. What is even more interesting is that in the third writ petition there is no specific statement that recital in the order, dated 27.03.1987, with regard to taking of possession is incorrect. Though it is stated in paragraph 9 of the writ petition that under orders dated 26.11.1977 and 27.3.1987 possession was never taken. It be noted that possession was not taken under order dated 27.03.1987. Rather, it is alleged to have been taken pursuant to notification dated 15.1.1979. Thus, by the time third writ petition was filed, a vesting notification had already been published in the official gazette on 15.1.1979. Further, the Competent Authority's order dated 27.03.1987 categorically stated that State has taken possession of the land. Yet, there is no statement in the writ petition that order dated 27.03.1987 bears an incorrect recital with regard to taking of possession. For all

2025:UHC:5380-DB the reasons above, in our view, the High Court ought to have been circumspect about the claim of the original petitioner that possession was not taken right up to the enforcement of the Repeal Act, 1999.

35. In view of the discussion above and having regard to the following: (a) that there was a serious dispute with regard to taking of possession of the surplus land; (b) that there was a delay of about seven years in filing the first writ petition from the date when possession was allegedly taken by the State, after publication of the vesting notification; (c) that no documentary evidence such as a Khasra or Khatauni of the period between alleged date of taking possession and filing of the first writ petition was filed by the original petitioner; (d) that in the earlier two rounds of litigation, the High Court refrained from deciding the issue of possession of the surplus land even though that issue had arisen directly between the parties; and (e) that infraction of the prescribed statutory procedure for taking possession cannot be the sole basis to discard State's claim of possession, when it is stated to have been taken long before the date the issue is raised, we are of the considered view that the High Court should have refrained from deciding the issue with regard to taking of actual possession of the surplus land prior to the cut off date specified in the Repeal Act, 1999. Instead, the writ petitioner should have been relegated to a suit.

36. In view of the above conclusion, the appeal is allowed. The impugned order passed by the High Court is set aside. The first respondent's writ petition is dismissed without prejudice to his right to institute a suit. Parties to bear their own costs.

37. It is clarified that we have not expressed any binding opinion as to whether possession of the surplus land was taken by the State before the cutoff date as specified in the Repeal Act, 1999. Observations, if any, in this regard are purely for the purpose of deciding whether the High Court should have

2025:UHC:5380-DB entertained the writ petition or not. Hence, if any suit is instituted the same shall be decided on its own merits."

4. Mr. Siddhartha Sah, learned Counsel for the appellant-writ petitioner, after perusing the judgment relied upon by Mr. Consul, sought permission to withdraw the appeal with liberty to approach competent civil court.

5. Accordingly, special appeal is dismissed as withdraw with liberty to the appellant to approach the appropriate forum.

6. It goes without saying that if appellant-writ petitioner files civil suit, the same shall be decided independently, uninfluenced by any observation made by us or in the impugned judgment.

(Subhash Upadhyay, J.) (Manoj Kumar Tiwari, J.)

25.6.2025 Pr PRABODH Digitally signed by PRABODH KUMAR

KUMAR DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3a082a00a95aff911a9559743af8f21c50602ff6eae4e61af3aeab198d462503, postalCode=263001, st=UTTARAKHAND, serialNumber=0DC111E8D8CA66E16B940EFDF806ACCC1AB588052DF6FCA58C67F3C91957BE53, cn=PRABODH KUMAR Date: 2025.06.25 17:53:33 +05'30'