Allahabad High Court
Liyakat Ali vs State Of U.P. And Ors. on 28 March, 2006
Equivalent citations: 2006(3)AWC2820
Author: Vineet Saran
Bench: Vineet Saran
JUDGMENT Vineet Saran, J.
1. Heard Sri Syed Wajid Ali, learned Counsel for the petitioner as well as Sri Bhola Nath Yadav, learned standing counsel appearing for the respondents and have perused the record.
2. The brief facts of this case are that on 20.6.1976 a notice under the U.P. Urban Land (Ceiling and Regulation) Act, 1976 (for short 'Act of 1976') was issued to one Fakir Chand. By order dated 6.2.1984, passed under Section 10(5) of Act of 1976, an area measuring 840.36 sq. meters of land of Fakir Chand was declared surplus. Then on 31.12.1985 the possession of the said surplus land measuring 840.36 sq. meters of Fakir Chand was taken by the State of U.P.
3. Thereafter, on the basis of an agreement dated 26.3.1974, said to have been executed by one Smt. Kaushalya Devi (wife of Fakir Chand), on 7.12.1990, the petitioner filed Original Suit No. 795 of 1990 in the court of Civil Judge, Saharanpur, for specific performance. Interestingly, said Smt. Kaushalya Devi (who is the wife of Fakir Chand, whose 840.36 sq. meters of land had been declared surplus), had entered into an agreement dated 26.3.1974, much prior to the coming into force of Act of 1976, which was with regard to the land of Fakir Chand which was subsequently declared surplus under the Act of 1976. The said agreement was not even registered. Further the Suit No. 795 of 1990 was filed 16 years after the alleged unregistered agreement was said to have been executed between the petitioner and said Smt. Kaushalya Devi (wife of Fakir Chand). The said suit was not contested by the defendant Smt. Kaushalya Devi and by judgment and Order dated 3.5.1991 (Annexure-6 to the writ petition) the suit was decreed ex parte in favour of the petitioner. No issues were framed nor was the case discussed in the judgment and merely by mentioning that there is no opposition and that the evidence had been taken on affidavit, it was held that the suit deserves to be decreed and was accordingly decreed.
4. In paragraph 4 of the plaint (Annexure-5 to the writ petition), mention had been made that said Smt. Kaushalya Devi had agreed that the sale deed would be executed by her after obtaining permission from the ceiling authorities. Even then, without noticing as to whether any such application had been filed by Smt. Kaushalya Devi under the Act of 1976 or as to whether any such permission had been granted, the suit was decreed. Nowhere from the record has the petitioner been able to show that the said land in question was owned by Smt. Kaushalya Devi. On being asked, the learned Counsel for the petitioner stated that since the said question had become final after the passing of the decree in Original Suit No. 795 of 1990, the petitioner was not required to prove the title of Smt. Kaushalya Devi. This is an interesting case where the property of X is sold by A to B, and without ascertaining as to whether A is the owner of the property or not, B gets the ownership of the property; even when X, who is the original owner, may have been deprived of the said property by operation of law.
5. Now coming to the present proceedings, by an order dated 4.4.2003, passed under the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (for short Act of 1972) the Prescribed Authority, Respondent No. 3. has directed eviction of the petitioner from the property in dispute which had been declared surplus under the Act of 1976 on 6.2.1984 and possession had been taken by the State on 31.12.1985. The appeal filed by the petitioner challenging the said order of the Prescribed Authority dated 4.4.2003 has been dismissed by the respondent No. 2 on 25.1.2006. Aggrieved by the said orders, the petitioner has filed this writ petition.
6. The authorities below have observed that the possession of the plot had been taken by the State Government much prior to the passing of the decree and the suit having been filed on the basis of an unregistered agreement, said to be executed more than 16 years back, was a collusive suit instituted with the collusion between the petitioner, Smt. Kaushalya Devi and her husband Fakir Chand. The said finding appears to be justified. I also find strength in the submission of the learned standing counsel that the alleged agreement dated 26.3.1974 has been executed by Smt. Kaushalya Devi as if she knew that that very area of land of her husband would be declared surplus two years later in the year 1976 under the Ceiling Act. The said agreement, being unregistered, further casts a doubt on the entire action taken by the petitioner and said Smt. Kaushalya Devi as well as her husband Fakir Chand only to defraud the State Government and nullifying its orders of taking possession of the surplus land of Fakir Chand. The ratio of the two decisions which have been relied upon by the learned Counsel for the petitioner, namely, (1) Government of Andhra Pradesh v. Thummala Krishna Rao and (2) Kishori Lal v. State of U.P. 1985 ACJ 217, are not applicable to the facts of the present case. In the present case, the State of U.P. was not even arrayed as a party in the suit and as such did not have an occasion to raise any objection or place before the court below that the land in question had already been declared surplus. Admittedly the suit was filed 16 years after the alleged agreement ; six years after the land had been declared surplus and five years after the possession had already been taken. As such' the finding of the authorities below that the same was nothing but a collusion between the parties concerned appears to be justified. Accordingly, on merits I do not find any good ground for interfering with the orders impugned in this writ petition.
7. Even otherwise, this Court exercises its discretionary jurisdiction under Article 226 of the Constitution of India. In this extra-ordinary equity jurisdiction, the Court can always refuse to interfere even with a legally sound order, in case if it appears that some fraud has been committed by the petitioner. In the present case, neither before the trial court in the suit filed by the petitioner nor before this Court, the petitioner has filed any document to show that Smt. Kaushalya Devi was owner of the land in question. Collusively and fraudulently a suit was filed by the petitioner, without even impleading the State of U.P. as a party, who had already taken possession of the land in question. Without contest, the suit was allowed to be decreed ex parte, on the basis of which the petitioner is now claiming his right. As such, equity is also not in favour of the petitioner. In such circumstances, when equity is against the petitioner, even presuming that if there is any illegality in the impugned orders, this Court can always refuse to interfere with the same. However, in the present case, neither is law nor equity in favour of the petitioner, and as such this writ petition deserves to be dismissed.
8. This writ petition is. accordingly, dismissed.
9. After the dismissal of the writ petition, the learned Counsel for the petitioner made a categorical statement that his client would be willing to give vacant possession of the property in question within three months from today. Sri Bhola Nath Yadav, learned standing counsel, however, submitted that such time may be granted to the petitioner only on his giving an undertaking to that effect in writing before this Court. In such view of the matter, while dismissing this writ petition, liberty is being given to the petitioner to file an application along with his personal affidavit giving an undertaking that he would hand over vacant possession of the property in question within the aforesaid period of three months, and if such an application is filed, the same may be placed before this Court for appropriate orders.