Allahabad High Court
Brij Kumar Singh vs State Of U.P. And 3 Others on 11 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1230
Bench: Bala Krishna Narayana, Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Court No. - 4 Case :- WRIT - C No. - 39872 of 2018 Petitioner :- Brij Kumar Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Bidhan Chandra Rai Counsel for Respondent :- C.S.C.,Krishna Mohan Asthana,Satish Chaturvedi Hon'ble Bala Krishna Narayana,J.
Hon'ble Ravi Nath Tilhari,J.
Per Hon'ble B. K. Narayana, J.
Heard Sri B.C. Rai, learned counsel for the petitioner, Sri M.C. Chaturvedi, learned Additional Advocate General, U.P. assisted by Sri Mohanji Srivastava, learned counsel for respondent nos. 1, 2 and 3 and Mrs. S. Rathi, learned counsel for respondent no. 4.
This writ petition has been filed by the petitioner with the following prayer to :-
i. issue a writ of certiorari to quash the impugned order dated 06.08.2018 as contained in Annexure No. 17 passed by the Principal Secretary, Avas Evam Sahari Niyojan Anubhag-6, Lucknow/ Respondent No. 1 and E-tender notice dated 11.10.2018 as contained in Annexure No. 19 issued by the Moradabad Development Authority, Moradabad/Respondent no. 4 inviting bid for development of a residential colony over Gata No. 02 (2A and 2B) situated at village- Shahpur Tigri, Tehsil and District- Moradabad;
ii. issue a writ, order or direction in the nature of writ of mandamus directing the Competent Authority, Urban Land Ceiling, Moradabad to restore the entry of the name of the petitioner in revenue records in respect to Gata Nos. 2A (area 40523.93 sq. metres) and 2B (area 2063.97 sq. metres), total area 42587.96 square metres situated in revenue village- Shahpur, Tigri, Tehsil- Moradabad, District- Moradabad;
iii. issue a writ, order or direction in the nature of writ of mandamus commanding the respondents not to interfere in the actual physical possession of the petitioner over the Gata Nos. 2A & 2B situated in revenue village- Shahpur, Tigri, Tehsil- Moradabad, District- Moradabad;
iv. issue such other and further writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case; and v. award the cost of the writ petition.
Briefly stated the facts of this case are that the petitioner's plot namely Gata Nos. 2A (area 40523.93 sq. metres) and 2B (area 2063.97 sq. metres), total area 42587.96 square metres situated in revenue village- Shahpur, Tigri, Tehsil- Moradabad, District- Moradabad (hereinafter referred to as the 'land in question') was declared surplus under the Urban Land (Ceiling and Regulation) Act, 1976, hereinafter referred to as the 'principal Act'. He challenged the proceeding by means of Writ Petition No. 19264 of 1993 wherein this Court on 7.6.1993 passed an interim order that the petitioner will not be dispossessed from the land in question. Vide order dated 14.10.1993, the said interim order was continued. In the meantime, the principal Act was repealed. In view of the said fact, a Division Bench of this Court vide its judgement dated 21.9.2001 abated the proceedings under the principal Act and in view of the said fact, the writ petition was disposed of. It appears that inspite of the said judgement, no consequential steps were taken by the respondents on the representation of the petitioner. Therefore, the petitioner preferred a Writ Petition No. 4085 of 2006 in which this Court found that a short question was required to be decided whether actual physical possession was or was not taken in the proceedings under the principal Act. Pursuant to the order of Division Bench dated 23.1.2006, a decision was taken by respondent no. 1 on 9.5.2007 wherein the authorities found that the petitioner is not in physical possession.
Dissatisfied with the order dated 9.5.2007, the petitioner again approached this Court by way of filing Writ Petition No. 28150 of 2007. The said writ petition was allowed with the following observation :-
"Possession on paper is a symbolic possession and word 'possession' used in Clause (a) of Section (2) of Section 3 of the Act mean actual physical possession and not the symbolic possession.
After the repealing of the Urban Land (Ceiling & Regulation Repeal) Act 1976 by Act No. 15 of 1999 Urban land (Ceiling and Regulation Repeal) Act 1999 the petitioners are entitled to the benefit of Section 3 of the Act No. 15 of 1999. The petitioner's land shall not be treated to have been declared as vacant land under the repeal Act.
For the reasons recorded above, the instant writ petition is allowed.
No orders as to cost."
The Moradabad Development Authority aggrieved by the said order preferred a Special Leave Petition No. 12283 of 2012 wherein initially status quo order was passed. Later on, the Hon'ble Supreme Court directed the District Judge, Moradabad to submit a report after inspection of the land in question regarding the physical possession of the land in question. The District Judge in its report found that the petitioner is in physical and cultivated possession. The District Judge submitted a report. The relevant part of the report of the District Judge reads as under:-
"Later on, A visit has also been made at Gata No.2A and 2B measuring 42587.93 Sq. M. situated at village Shahpur Tigri, District Moradabad. All the aforesaid officers and Sri Brij Kumar Singh were present there. In this gata number, there is no development or construction/residential colony. The total land is lying vacant in the shape of cultivated land and there is no crop standing on the said disputed land as shown in the map prepared by Amin as Annexure No. 4."
The Supreme Court upon considering the said report dismissed the special leave petition No. 30659 of 2010 of the Moradabad Development Authority with the following observations:-
"Be it noted, in the report, it has been clearly stated that the plots in respect of which possession has not been taken over, the same shall remain in possession of the persons who are already in possession."
The aforesaid facts clearly demonstrate that the findings recorded by this Court in Writ Petition No. 28150 of 2007 quoted herein above had not been set aside by the Supreme Court. The said fact leaves no room for any doubt that the petitioner is in possession over the land in question. It appears that inspite of the aforesaid judgements when no consequential steps were taken by the respondents, the petitioner again approached this Court by means of a Writ Petition No. 8789 of 2018. This Court without expressing any opinion on merits observed as under:-
"Accordingly, we direct the respondents No.1, 2 and 3 to consider the application of the petitioner for recording his name over the land in dispute in accordance with law after hearing the petitioner as well as the Moradabad Development Authority as expeditiously as possible, preferably within a period of three months."
In compliance of the said order the respondent no.1, Principal Secretary, Awas Evam Sahari Niyojan, Government of U.P., Lucknow, passed the impugned order dated 06.8.2018 referring the opinion of the D.G.C. (Civil). In the said report, the Principal Secretary, Awas Evam Sahari Niyojan, Government of U.P., Lucknow, has held that Moradabad Development Authority is in possession of the land and he has referred some documents.
It appears that the coordinate Bench of this Court took note of the fact that the Principal Secretary, Awas Evam Sahari Niyojan, Government of U.P., Lucknow while passing the impugned order dated 06.08.2018 had ignored the judgement of the Hon'ble Supreme Court and this Court where categorical findings were recorded that the petitioner was in possession of the disputed plot and had placed its conclusion on the report of the D.G.C. and directed the Principal Secretary, Awas Evam Sahari Niyojan, Government of U.P., Lucknow to file his personal affidavit.
The Moradabad Development Authority filed Civil Appeal No. 3242 of 2019 arising out of SLP (C) No. 2900/2019 before the Hon'ble Apex Court challenging the interim order dated 18.12.2018 which was finally disposed of by the order of Hon'ble Supreme Court passed on 27.03.2019 which runs as hereunder :-
Leave granted.
1. The appellants are aggrieved by the observations made in the interim order passed by the High Court on 18.12.2018.
2. Mainly, according to Shri Rakesh U. Upadhyay, learned counsel for the appellants, the High Court ought not to have observed "that the Principal Secretary, Awas Evam Shahri Niyojan, Government of U.P., Lucknow, should not have ignored the judgement of the Supreme Court and this Court where clear finding has been recorded regarding the possession of the petitioner". According to the appellants this Court vide order dated 04.01.2017 passed in SLP (C) Nos. 30658-30659/2010 and connected matter recorded a specific finding about possession i.e., whether it is with the petitioner(s) or with the respondent(s). We find that the submission of Shri Upadhyay in this regard is correct.
3. Shri M.L. Lahoty, learned counsel for the respondents pointed out that there is reference to the possession being with the respondents in the High Court's order dated 19.08.2019. This however, is countered by Shri Upadhyay by submitting that the possession referred to in the High Court's order is symbolic possession and not actual possession. It is not necessary for us to render any finding on possession, particularly, since these appeals are only against an interim order. We, however, feel that the observations in the order of the High Court were not necessary for the purpose of the interim order and the matter needs a final decision on the entire dispute in Writ C No. 39872/2018, pending before the High Court.
4. We accordingly, set aside the impugned order and request the High Court to dispose of Writ C No. 39872/2018 as early as possible, preferably not later than one year.
5. The appeals are disposed of accordingly.
6. Shri M.L. Lahoty seeks permission to withdraw Contempt Petition No. 4646 of 2018 in view of the above order.
7. Ordered accordingly.
8. In view of the order passed in the above appeals, these appeals are also disposed of.
We therefore, proceed to decide this matter finally on merits in pursuance of the direction issued by the Apex Court vide order dated 27.03.2019.
It is urged by the learned counsel for the petitioner that the Principal Secretary, Awas Evam Sahari Niyojan, Government of U.P., Lucknow, has tried to over reach the order of the Supreme Court. Once the matter was settled by this Court against which S.L.P. was dismissed, the Principal Secretary, Awas Evam Sahari Niyojan, Government of U.P., Lucknow, has no business to pass a contrary order. He has referred a judgment of the Supreme Court in the case of Devaki Nandan Prasad Vs. State of Bihar reported in 1983 Law Suit (SC) 129. He further urged that in fact the order of the Principal Secretary, Awas Evam Sahari Niyojan, Government of U.P., Lucknow is contemptuous, perverse and not warranted by any material on record.
Per contra Sri M.C. Chaturvedi, learned Additional Advocate General, U.P. assisted by Sri Mohanji Srivastava, learned counsel for respondent nos. 1, 2 and 3 and Mrs. S. Rathi, learned counsel for respondent no. 4 made a feeble attempt to defend the impugned order and submitted that the material on record indicates that the possession of the land in question was transferred by the respondent nos. 1 to 3 to respondent no. 4 and hence, the impugned order which is based upon relevant consideration and supported by cogent reasons warrants no interference by this Court. This writ petition lacks merit and is liable to be dismissed.
We have heard learned counsel for the parties and perused the material brought on record including the original record pertaining to the proceedings taken under the principal Act in respect of the petitioner's land which was produced before us by the learned counsel appearing for the respondent nos. 1 to 3.
The twin questions which arise for our consideration in this writ petition inter-alia are that whether on the date of the coming into force of the Repeal Act, 1999, actual physical possession of the disputed land was with the petitioner or the same stood delivered to the State and; whether the petitioner is entitled to the benefit of the Repeal Act ?
In order to examine the aforesaid questions, it would be useful to reproduce the provisions of the principal Act and The Urban Land (Ceiling and Regulation) Repeal Act, 1999 which are relevant for our purpose :-
6. Persons holding vacant land in excess of ceiling limit to file statement-
(1) Every person holding vacant land in excess of the ceiling limit at the commencement of this Act shall, within such period as may be prescribed, file a statement before the competent authority having Jurisdiction specifying the location, extent, value and such other particulars as may be prescribed of all vacant land and of any other land on which there is a building, whether or not with a dwelling unit therein, held by him (including the nature of his right, title or interest therein) and also specifying the vacant land within the ceiling limit which he desires to retain: Provided that in relation to any State to which this Act applies in the first instance, the provisions of this sub-section shall have effect as if for the words "Every person holding vacant land in excess of the ceiling limit and the commencement of this Act", the words, figures and letters "Every person who held vacant land in excess of the ceiling limit on or after the 17th day of February, 1975 and before the commencement of this Act and every person holding vacant land in excess of the ceiling limit at such commencement" had been substituted. Explanation.--In this section, "commencement of this Act" means,--
(i) the date on which this Act comes into force in any State;
(ii) where any land, not being vacant land, situated in a State in which this Act is in force has become vacant land by any reason whatsoever, the date on which such land becomes vacant land;
(iii) where any notification has been issued under clause (n) of section 2 in respect of any area in a State in which this Act is in force, the date of publication of such notification.
(2) If the competent authority is of opinion that--
(a) in any State to which this Act applies in the first instance, any person held on or after the 17th day of February, 1975 and before the commencement of this Act or holds at such commencement; or
(b) in any State which adopts this Act under clause (1) of article 252 of the Constitution, any person holds at the commencement of this Act, vacant land in excess of the ceiling limit, then, notwithstanding anything contained in sub-section (1), it may serve a notice upon such person requiring him to file, within such period as may be specified in the notice, the statement referred to in sub-section (1).
(3) The competent authority may, if it is satisfied that it is necessary so to do, extend the date for filing the statement under this section by such further period or periods as it may think fit; so, however, that the period or the aggregate of the periods of such extension shall not exceed three months.
(4) The statement under this section shall be filed,--
(a) in the case of an individual, by the individual himself; where the individual is absent from India, by the individual concerned or by some person duly authorised by him in this behalf; and where the individual is mentally incapacitated from attending to his affairs, by his guardian or any other person competent to act on his behalf;
(b) in the case of a family, by the husband or wife and where the husband or wife is absent from India or is mentally incapacitated from attending to his or her affairs, by the husband or wife who is not so absent or mentally incapacitated and where both the husband and the wife are absent from India or are mentally incapacitated from attending to their affairs, by any other person competent to act on behalf on the husband or wife or both;
(c) in the case of a company, by the principal officer thereof;
(d) in the case of a firm, by any partner thereof;
(e) in the case of any other association, by any member of the association or the principal officer thereof; and
(f) in the case of any other person, by that person or by a person competent to act on his behalf. Explanation.--For the purposes of this sub-section, "principal officer"--
(i) in relation to a company, means the secretary, manager or managing- director of the company;
(ii) in relation to any association, means the secretary, treasurer, manager or agent of the association, and includes any person connected with the management of the affairs of the company or the association, as the case may be, upon whom the competent authority has served a notice of his intention of treating his as the principal officer thereof.
7. Filing of statement in cases where vacant land held by a person is situated within the jurisdiction of two or more competent authorities.--
(1) Where a person holds vacant land situated within the jurisdiction of two or more competent authorities, whether in the same State or in two or more States to which this Act applies, then, he shall file his statement under sub-section (1) of section 6 before the competent authority within the jurisdiction of which the major part thereof is situated and thereafter all subsequent proceedings shall be taken before that competent authority to the exclusion of the other competent authority or authorities concerned and the competent authority, before which the statement is filed, shall send intimation thereof to the other competent authority or authorities concerned.
(2) Where the extent of vacant land held by any person and situated within the jurisdiction of two or more competent authorities within the same State to which this Act applies is equal, he shall file his statement under sub-section (1) of section 6 before any one of the competent authorities and send intimation thereof in such form as may be prescribed to the State Government and thereupon, the State Government shall, by order, determine the competent authority before which all subsequent proceedings under this Act shall be taken to the exclusion of the other competent authority or authorities and communicate that order to such person and the competent authorities concerned.
(3) Where the extent of vacant land held by any person and situated within the jurisdiction of two or more competent authorities in two or more States to which this Act applies is equal, he shall file his statement under sub-section (1) of section 6 before any one of the competent authorities and send intimation thereof in such form as may be prescribed to the Central Government and thereupon, the Central Government shall, by order, determine the competent authority before which all subsequent proceedings shall betaken to the exclusion of the other competent authority or authorities and communicate that order to such person, the State Governments and the competent authorities concerned.
8. Preparation of draft statement as regards vacant land held in excess of ceiling limit-
(1) On the basis of the statement filed under section 6 and after such inquiry as the competent authority may deem fit to make the competent authority shall prepare a draft statement in respect of the person who has filed the statement under section 6.
(2) Every statement prepared under sub-section (1) shall contain the following particulars, namely:--
(i) the name and address of the person;
(ii) the particulars of all vacant land and of any other land on which there is a building, whether or not with a dwelling unit therein, held by such person;
(iii) the particulars of the vacant lands which such person desires to retain within the ceiling limit;
(iv) the particulars of the right, title or interest of the person in the vacant land; and
(v) such other particulars as may be prescribed.
(3) The draft statement shall be served in such manner as may be prescribed on the person concerned together with a notice stating that any objection to the draft statement shall be preferred within thirty days of the service thereof.
(4) The competent authority shall duly consider any objection received, within the period specified in the notice referred to in sub-section (3) or within such further period as may be specified by the competent authority for any good and sufficient reason, from the person whom a copy of the draft statement has been served under that sub-section and the competent authority shall, after giving the objector a reasonable opportunity of being heard, pass such orders as it deems fit.
9. Final Statement.--After the disposal of the objections, if any, received under sub-section (4) of section 8, the competent authority shall make the necessary alterations in the draft statement in accordance with the orders passed on the objections aforesaid and shall determine the vacant land held by the person concerned in excess of the ceiling limit and cause a copy of the draft statement as so altered to be served in the manner referred to in sub-section (3) of section 8 on the person concerned and where such vacant land is held under a lease, or a mortgage, or a hire-purchase agreement, or an irrevocable power of attorney, also on the owner of such vacant land.
10. Acquisition of vacant land in excess of ceiling limit-
(1) As soon as may be after the service of the statement under section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that--
(i) such vacant land is to be acquired by the concerned State Government; and
(ii) the claims of all person interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed.
(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit.
(3) At any time after the publication of the notification under sub-section (1) the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.
(4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3)--
(i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and
(ii) no person shall alter or cause to be altered the use of such excess vacant land.
(5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorized by the State Government in this behalf within thirty days of the service of the notice.
(6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary. Explanation.--In this section, in sub-section (1) of section 11 and in sections 14 and 23, "State Government", in relation to--
(a) any vacant land owned by the Central Government, means the Central Government;
(b) any vacant land owned by any State Government and situated in the Union territory or within the local limits of a cantonment declared as such under section 3 of the Cantonments Act, 1924 (2 of 1924), means that State Government.
Section 3 and 4 of the Repeal Act, 1999 are as hereunder :-
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;
(c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20.
(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 and 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.
From the perusal of the aforesaid provisions of the principal Act, it transpires that Section 6 provides that every person holding vacant land in excess of the ceiling limit was required to file a statement before the competent authority having jurisdiction specifying the location, extent, value and such other prescribed particulars of the vacant land and of any other land on which there was a building, whether or not with a dwelling unit therein, held by him.
Section 7 provides the procedure for filing of statement in cases where vacant land held by a person was situated within the jurisdiction of two or more competent authorities.
Section 8 provides that on the basis of the statement filed u/s 6 and after such inquiry as the competent authority may deem fit to make, the competent authority shall prepare the draft statement.
Section 8 (3) stipulates that the draft statement prepared u/s 8 shall be served on the person concerned together with a notice stating that any objection to the draft statement shall be prepared within 30 days of the service thereof.
Section 9 provides that after disposal of the objections, if any, received under sub-section (4) of Section 8, the competent authority shall prepare the final statement.
Section 10 (1) provides that after the service of the statement u/s 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit to be published in the Official Gazette of the State concerned for the information of the general public.
Section 10 (2) empowers the competent authority to decide the claims of the persons interested in the vacant land filed in pursuance of the notification published under sub-section (1).
Section 10 (3) provides that the competent authority concerned may, by notification published in the Official Gazette of the State concerned, anytime after the publication of the notification under sub-section (1) declare that excess vacant land referred to in the notification published under sub-section (1) with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government. Such land shall be deemed to have vested absolutely in the State Government free from all encumbrances.
Section 10 (4) prohibits transfer by way of sale, mortgage, gift, lease or otherwise by any person any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void and no person shall alter or cause to be altered the use of such excess vacant land.
Section 10 (5) empowers the competent authority to order any person by notice in writing who is in possession of any vacant land vested in the State Government under sub-section (3) to surrender or deliver possession thereof to State Government or to any person duly authorized by the State Government in this behalf within thirty days of the service of the notice.
Section 10 (6) states where any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorized by such State Government in this behalf and may for that purpose use such force as may be necessary.
The kind of possession contemplated u/s 3 & 4 of the Repeal Act, 1999, in our opinion, is actual possession and not a mere paper possession and if the possession of the petitioner's land which was declared surplus land stood vested in the State Government u/s 10 (3) of the principal Act was not taken and no proceedings u/s 11, 12, 13 and 14 of the principal Act were pending on the date of coming into force of the Repeal Act, 1999, the petitioner is entitled to the benefit of the Repeal Act, 1999.
From the perusal of the original record, notification u/s 10 (3) of the principal Act in respect of the land in question was published on 28.02.1986 while notice u/s 10 (5) of the principal Act was issued on 25.05.1990 and published in the official gazette on 28.07.1990. There is also a possession memo dated 13.11.1992, copy whereof has been brought on record as Annexure No. C.A.-4 to the counter affidavit filed on behalf of the respondent no. 4 in the writ petition, by which the possession of the land in question was purported to have been taken by the respondent no. 2. The possession memo neither contains name of the person from whom respondent no. 2 had obtained the actual physical possession of the land in question nor the said document has been signed by the petitioner.
It is also not the case of the respondents that after publication of the notice u/s 10 (5) of the principal Act in the official gazette, the petitioner had delivered the physical possession of his surplus land to the respondent nos. 1 to 3.
We have very carefully scanned the original record and we are constrained to observe that there is no material on record indicating that forcible possession of the land in question was taken by the respondents from the petitioner u/s 10 (6) of the principal Act. The possession memo dated 13.04.1992 appears to be a sham document and there is nothing which may persuade us into holding that either the possession of the land in question was peacefully delivered by the petitioner to the respondents after the publication of the notice u/s 10 (5) of the principal Act or the respondent no. 2 had taken forcible possession of the land in question from the petitioner.
Thus, we have no hesitation in holding that the petitioner was in possession of the land in question on the date on which the Repeal Act, 1999 came into force. Even otherwise the Hon'ble Apex Court as well as this Court have recorded categorical findings of fact in their judgements that the possession of the land in question was with the petitioner.
In State of U.P. v. Hari Ram, reported in (2013) 4 SCC 280, the Apex Court observed that what is required for a land to come out from the purview of Repeal Act is that it should be a case of forceful dispossession in the event of there being no peaceful dispossession. The peaceful dispossession is related to proceedings u/s 10 (5) of the principal Act, whereas, the forceful dispossession is related to proceedings u/s 10 (6) of the principal Act vide paragraph 39 of Hari Ram (supra), the Court concluded thus :-
"39. Above-mentioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, it the land owner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, u/s 10 (5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land."
(emphasis added) There is another document on record showing that the State Government had allegedly delivered the possession of the land in question to the respondent no. 4 on 30.03.1993, copy whereof has been brought on record as Annexure No. C.A.- 5 to the counter affidavit filed on behalf of respondent no. 4 in the writ petition.
We are of the considered view that the actual physical possession of the surplus land neither having been delivered to the Government voluntarily nor taken forcefully by the Government, any transfer of possession of the surplus land by the Government in favour of respondent no. 4 on paper, in pursuance of the Government orders as mentioned therein, is of no relevance or consequence. Such a paper transaction in favour of respondent no. 4 by the State Government to defeat the rights of the petitioner is not recognized under law.
In Lalla Vs. State of U.P. reported in 2014 (9) ADJ 524, this Court in paragraph 11 of the judgement has held as hereunder :-
"The law does not contemplate transfer of possession by Government orders. It needs to be clarified that the land for the purposes of management would vest in the local authorities/development authorities only when the State came in valid possession over land, pursuant to lawful proceedings under Section 10 (5) or 10 (6) of the Act. The local authorities/development authorities merely steps into shoes of the State Government. If the State Government through the Collector/District Magistrate has not taken possession over the land in question, as contemplated by law, the transfer of possession in favour of the local authorities/development authorities cannot be presumed under Government order. If the possession of land has not been taken by the State, as per the procedure already determined by the Apex Court, the local authorities//development authorities cannot claim independent right over the land merely on the strength of the Government order."
Thus, we find that actual physical possession of the petitioner's surplus land was never taken by the State Government from the petitioner and the petitioner stood in possession of the land in question on the date of the coming into force of the Repeal Act, 1999. This writ petition deserves to be allowed.
Accordingly, the writ petition is allowed.
The impugned order dated 06.08.2018 is hereby quashed. A further direction is issued to the respondents to expunge the name of respondent-State from the revenue record and to restore that of the petitioner who is the owner of the land in question.
Order Date :- 11.06.2020 KS