Allahabad High Court
Guddi vs State Of U.P.Thr,Prin.Secy.Deptt.Of ... on 5 March, 2018
Equivalent citations: AIRONLINE 2018 ALL 5463
Bench: Vikram Nath, Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 1 Case :- LAND ACQUISITION No. - 6107 of 2016 Petitioner :- Guddi Respondent :- State Of U.P.Thr,Prin.Secy.Deptt.Of Urban Land Ceiling & Ors Counsel for Petitioner :- Shireesh Kumar,Dhirendra Singh Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Madan Mohan Pandey,N C Mehrotra,Shobhit Mohan Shukla with Case :- LAND ACQUISITION No. - 6108 of 2016 Petitioner :- Vimal Kumar Yadav And Ors. Respondent :- State Of U.P.Thr,Prin.Secy.Deptt.Of Urban Land Ceiling & Ors Counsel for Petitioner :- Shireesh Kumar,Dhirendra Singh Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Shobhit Mohan Shukla with Case :- LAND ACQUISITION No. - 14345 of 2017 Petitioner :- Guddu Yadav & Ors Respondent :- State Of U.P Thru Prin Secy Urban Land Ceiling Lko & Ors Counsel for Petitioner :- Shireesh Kumar Counsel for Respondent :- C.S.C,Ratnesh Chandra :::::::::: Hon'ble Vikram Nath,J.
Hon'ble Abdul Moin,J.
(Per Hon'ble Abdul Moin, J.)
1. Heard Sri Asit Chaturvedi, learned Senior Advocate assisted by Sri Shireesh Kumar, learned counsel for the petitioners in all the three petitions, Sri Shailendra Singh Chauhan, learned Additional Chief Standing Counsel for the State-respondents in all the three petitions, Sri M.M. Pandey and Sri Shobhit Mohan Shukla, learned counsels for the Lucknow Development Authority in Writ Petition (L/A) Nos.6107 of 2016 and 6108 of 2016 and Sri Mukund Tiwari, learned counsel representing the Lucknow Development Authority in Writ Petition (L/A) No.14345 of 2017. We have also perused the original record of the above three cases produced by Sri Chauhan, learned Additional Chief Standing Counsel.
2. In all these writ petitions, the petitioners are seeking the benefit of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as the Repeal Act, 1999) on common grounds set out in the petitions. As common questions of law and facts are involved in all the petitions, we are proceeding to decide the same by a common judgment. For the sake of convenience, we are taking the facts of leading writ petition namely Writ Petition (L/A) No.6107 of 2016 inre: Guddi vs. State of U.P. and others).
3. The facts of the case as set forth in the said writ petition are that late Chheda was the owner of Gata No.2260 having area 6545.81 square meters situated in Village Ujarion, Tahsil Sadar, District Lucknow. Upon the death of Chheda, the land devolved upon his daughter Guddi, the petitioner. On 17.2.1976, the State Government notified the U.P. Act No.33 of 1976 namely the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the 1976 Act) with the object to provide for imposition of a ceiling on vacant land in urban areas and for the acquisition of such land in excess of the ceiling limit. On 20.9.1976, the Competent Authority under the 1976 Act issued a notification providing that under Section 10(1) of the 1976 Act, the surplus land of the petitioner mentioned in the schedule is to be acquired by the State Government. On 21.9.1978 the Competent Authority issued notification under Section 10(3) of the 1976 Act notifying that the land stands acquired by the Government of U.P. and after publication of the notification the said land would be free from all encumbrances and shall vest with the State Government. Copy of notification dated 21.9.1978 is Annexure-2 to the writ petition.
4. Thereafter on 20.8.1979, the notice under Section 10(5) of the 1976 Act was issued providing that the possession of the plot of land acquired by the State Government be handed over within 30 days to the District Magistrate, Lucknow. By referring to various provisions of the 1976 Act, the petitioner contends that after the notification was issued declaring the vacant land and where under Section 10(3) of the 1976 Act the said vacant land is vested in the State Government, 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. In continuance thereof, respondent No.4 issued possession certificate on 6.9.1979 indicating that possession of surplus land has been taken by the Tahsildar.
5. The petitioner submits that Section 10(6) of the 1976 Act provides that if any person refuses or fails to comply with the order made under Section 10(5) of the 1976 Act, 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 petitioner contends that she did not hand over the possession of the land to the Competent Authority under the provisions of Section 10(5) of the 1976 Act and consequently it would be deemed that the possession of the land remained with her. The petitioner further contends that neither notice under Section 10(6) of the 1976 Act was issued nor any proceeding for taking possession under Section 10(6) of the 1976 Act was initiated and as such legally the physical possession of the land in question remained with the petitioner.
6. The petitioner also contends that as per the notification dated 9.2.1977, which has been passed on during the course of arguments and which we take on record, the State Government had notified the Collector of the district as the person by whom the land was to be taken custody of in terms of Section 10(5) and (6) and consequently any possession that may have been taken under the provision of Section 10(5) of the 1976 Act by any other person except the Collector would thus be deemed as if the possession having not been taken by the authorised person and consequently the taking of the actual possession of the petitioner's land by the Tahsildar on 6.9.1979 was without authority of law and hence the petitioner would be deemed to be continuing in legal possession of the said land.
7. The petitioner further contends that taking into consideration the Repeal Act, 1999 more particularly Section 3(2) of the Repeal Act, 1999 where the land of the petitioner, though deemed to have vested in the State under Section 10(3) of the 1976 Act but as possession was neither taken by the State Government nor by the person duly authorised by the State Government, in this case the Collector, and as the petitioner was not paid the amount with respect to such land then consequently the petitioner is entitled to have her land restored. The petitioner specifically contends that as no compensation was paid to her consequent upon acquisition of her land as per Section 11 of the 1976 Act, as such she is entitled for restoration of her land.
8. In support of the aforesaid submissions, the petitioner has placed reliance over the judgments of the Hon'ble Supreme Court in the case of State of U.P. vs. Hari Ram reported in (2013)4 SCC 280, Gajanan Kamlya Patil vs. Additional Collector and Competent Authority (ULC) and others reported in (2014)12 SCC 523, K.B. Ramachandra Raje vs. State of Karnataka and others reported in (2016)3 SCC 422 and State of Madhya Pradesh vs. Syed Qamarali reported in 1967 SCR (SC) 228.
9. While placing reliance on the aforesaid judgments, the prayer of the petitioners is that the possession certificate dated 6.9.1979 issued by the respondent No.4 acquiring the land of the petitioner by taking over the physical possession of the land contained in Annexure-3 to the writ petition be declared as null and void and that the entries made in the revenue record in favour of the State be expunged and further the respondents be restrained from interfering in the peaceful possession of the petitioner on the land in question of which she is legally in physical possession.
10. Likewise in Writ Petition (L/A) No.14345 of 2017 inre: Guddu Yadav and others vs. State of U.P. and others, the petitioners have prayed for expunging the entries made in the revenue records in favour of the State over Khasra Nos.2314 measuring 6772.65 square meters and 2315 measuring 12014 square meters and further praying for not interfering with the peaceful possession of the petitioners on the said land wherein the petitioners are legally in physical possession.
11. Similarly in Writ Petition (L/A) No.6108 of 2016 inre: Vimal Kumar Yadav and others vs. State of U.P. and others, the relief prayed for is for declaring the possession certificate dated 6.9.1979 acquiring the land of the petitioner by taking over physical possession of the land as null and void and for expunging the entries made in the revenue records in favour of the State and other consequential reliefs.
12. On the other hand Sri Shailendra Singh Chauhan, learned Additional Chief Standing Counsel, Sri M.M. Pandey, Sri Shobhit Mohan Shukla and Sri Mukund Tiwari, learned counsels appearing for the respondents have vehemently opposed the writ petition by contending that the writ petitions deserve to be dismissed outrightly on the ground of gross delay and laches. In this regard the learned counsels for the respondents have brought to our notice that if any cause of action arose to the petitioner, the same arose in the year 1979 when as per the averments made by the petitioner, the physical possession of the surplus land was taken by an alleged incompetent person as per the notification dated 9.2.1977 over which reliance has been placed by the petitioner. They further argue, while taking us through the averments made in the counter affidavit filed by them, that order under Section 8(4) of the 1976 Act was passed on 18.5.1977 whereby the land was declared surplus. It is further argued by them that the physical possession of the land has already been taken by the Government admittedly way back in the year 1979 and in this regard copy of the possession memo dated 28.1.1979 containing the thumb impression of the original tenure holder namely Chheda has been filed as Annexure CA-2 to the counter affidavit of respondents No.1 to 4 and the original records have also been produced. As regard the allegations made by the petitioner of her land having been taken possession of on 9.6.1979 as per Annexure-3 to the writ petition, it is the specific case of the respondents No.1 to 4 that the possession certificate annexed by the petitioner is not referable to the land bearing Gata Nos.2260 and 2282 inasmuch as the possession was taken on 28.1.1979. It has also been contended that after the actual physical possession was taken, the land was handed over to the Lucknow Development Authority in the year 1987 (more precisely on 23.7.1987 in the case of Smt. Guddi Devi) and thereafter the aforesaid piece of land is part of Janeshwar Mishra Park, Gomti Nagar, Lucknow and development has been made over the aforesaid piece of land.
13. With regard to the writ petitions being bad on account of delay and laches, reliance has been placed over the Constitution Bench judgment of the Hon'ble Supreme Court in the case of Aflatoon vs. Lt. Governor of Delhi reported in (1975)4 SCC 285, Mutha Associates and others vs. State of Maharashtra and others reported in (2013)14 SCC 304 and Smt. Sudama Devi vs. Commissioner and others reported in 1983(2) SCC 1. It has further been contended that no explanation for the delay in filing of the writ petition has been given by the petitioner and consequently once admittedly the physical possession was taken way back in the year 1979 and despite the Repeal Act, 1999 the petitioner who has slept over the alleged rights for a period of almost 37 years from the date when the physical possession was taken or almost 17 years from the promulgation of the Repeal Act, 1999, more particularly when the development has already taken place over the aforesaid land, renders the petitioner not entitled for any relief.
14. So far as Writ Petition (L/A) No.14345 of 2017 is concerned, in the said case also in the counter affidavit filed on behalf of respondents No.1 to 4 it has been specifically contended that the possession of the land was taken on 6.9.1979 in presence of the original tenure holder Nanda son of Prasad under the provisions of Section 10(5) of the 1976 Act and it is a clear case of surrender of possession by the original tenure holder. Copy of the possession memo is Annexure CA-1 to the counter affidavit. It is also the specific case that the Competent Authority passed the order under Section 8(4) of the 1976 Act on 17.10.1977 declaring the land as surplus. It has also been contended that the land in question was handed over to the Lucknow Development Authority on 23.7.1987. In the counter affidavit filed by the Lucknow Development Authority, it is the specific case that the land of Khasra Nos.2314 and 2315 now forms part of Janeshwar Mishra Park, Gomti Nagar, Lucknow.
15. In Writ Petition (L/A) No.6108 of 2016 in the counter affidavit filed by the State-respondents it is the specific case that an order under Section 8(4) of the 1976 Act was passed on 7.9.1977 declaring the land as surplus. Thereafter the possession of the land was taken on 28.9.1979 in presence of the original tenure holder Nanda son of Prasad. Copy of the possession memo is Annexure CA-2 to the counter affidavit. The respondents contend that it was a clear case of surrender of possession by the original tenure holder under Section 10(5) of the 1976 Act. They further contend that the land in question has been handed over to the Lucknow Development Authority on 23.7.1987. In the counter affidavit filed by the Lucknow Development Authority, it is the specific case that after possession of the land handed over to the Lucknow Development Authority, the land has been developed and at present is part of Janeshwar Mishra Park, Gomti Nagar, Lucknow.
16. The original records in all the three cases have been produced by the respondents.
17. Having considered the arguments of both the sides, what we find from perusal of original records is that there is an order passed under Section 8(4) of the 1976 Act dated 18.5.1977 issued by the Competent Authority whereby the land has been declared surplus. Incidentally the said order has also not been challenged by the petitioner. Moreover, from a perusal of the original documents on record it clearly comes out that admittedly the physical possession of the land of the petitioner was taken in the year 1979 more particularly on 28.1.1979. A copy of the possession memo dated 28.1.1979 in the case of Smt. Guddi indicates that the possession of the land has been taken in presence of Chheda Lal who has affixed his thumb impression on the possession memo. Subsequent thereto, the land was handed over to the Lucknow Development Authority on 23.7.1987 and as per the counter affidavit filed by the Lucknow Development Authority it comes out that the land has been developed by the Lucknow Development Authority and presently it is part of Janeshwar Mishra Park, Gomti Nagar, Lucknow.
18. We have also gone through the original records pertaining to taking over the physical possession in all the writ petitions and after perusal of the original records, the following position emerges:-
(A) Writ Petition No.6107 of 2017 inre: Guddi vs. State of U.P. and others - There is an order dated 18.5.1977 passed by the Competent Authority under Section 8(4) of the 1976 Act. The possession memo dated 28.1.1979 indicates possession of the land having been taken in presence of Chheda Lal whose thumb impression is also affixed on the possession memo.
(B) Writ Petition No.14345 of 2017 inre: Guddu Yadav and others vs. State of U.P. and others - There is an order dated 17.10.1977 passed under Section 8(4) of the 1976 Act. The possession certificate indicating taking of physical possession by the State Government dated 6.9.1979 for Plot No.2314M and 2315 is also on record. However, we may record here that the presence of the original tenure holder is not indicated on the possession memo, as has been contended in the counter affidavit. Thus, the averments made in the counter affidavit pertaining to possession of land having been taken on 28.9.1979 in presence of original tenure holder Nanda son of Prasad appears to be a typographical error inasmuch as the said averment is verbatim of averment in the counter affidavit of Writ Petition (L/A) No.6198 of 2016. Be that as it may, the possession certificate dated 6.9.1979 is on record.
(C) Writ Petition No.6108 of 2016 inre: Vimal Kumar Yadav and others vs. State of U.P. and others - There is an order dated 4.7.1977 indicating details of the land namely Plot Nos.2239, 2245, 2247, 2266, 2310 and 2311 and also order dated 7.9.1977 passed under Section 8(4) of the 1976 Act. Thereafter there is a notice directing Nanda son of Prasad that action is being initiated for taking possession under the provisions of Section 10(6) and that the possession shall be taken on 22.8.1979. It appears that subsequently, the actual physical possession was taken on 26.9.1979.
19. The petitioners have placed reliance over the judgment of the Hon'ble Supreme Court in the case of Hari Ram (supra) to contend that there would not be any question of deemed vesting and accordingly keeping in view the Repeal Act,1999 the land would revert back to them. The said judgment is clearly distinguishable inasmuch as in the case of Hari Ram (supra), the concerned litigant was all along pursuing the matter by filing an appeal in the year 1999 before the District Judge, Varanasi under Section 33 of the 1976 Act when in the year 1999 the State Government asked Hari Ram to hand over possession of the land meaning thereby the actual physical possession of the land was with Hari Ram which is not the case here inasmuch as the physical possession of the land was taken in the year 1979 and the petitioners have started litigating in the year 2016 on the ground of having legal possession only and not claiming to have any actual physical possession.
20. So far as reliance on the case of Gajanan Kamlya Patil (supra) by the petitioners is concerned, the said case is also distinguishable on its own facts inasmuch as in the said case the High Court relegated the petitioner to file civil suit to recover the land which is not the case here. Further in the said case the petitioners were in actual physical possession of the land also.
21. So far as reliance on the case of Syed Qamarali (supra) is concerned, in the said case the Hon'ble Supreme Court has held that where an order has been passed in breach of mandatory provisions, the same would have no legal existence and it was not necessary for the litigant to have the order set-aside by a court of law. The said case is also clearly distinguishable inasmuch as the same pertains to a service dispute in which no third party rights were created, while in the instant case admittedly the physical possession had been taken by the Government in the year 1979 and subsequently handed over to the Development Authority which carried out the development and now a park has been built over the land in question, as such the said judgment also does not come to the rescue of the petitioner.
22. As regard the judgment of the Hon'ble Supreme Court in the case of K.B. Ramachandra Raje (supra), referred to by the petitioner, in the said case Hon'ble Supreme Court held that the High Court is not bound by any strict rule of limitation and if substantial issues of public importance touching upon the fairness of governmental action do arise, the delayed approach to reach the Court will not stand in the way of the exercise of jurisdiction. The said judgment is also clearly distinguishable inasmuch as here in the instant case the conduct of the petitioners in sitting over the matter for a period of almost four decades and not agitating for their rights and now coming forward in the year 2016 to contest the matter on technicalities without explaining the delay and laches of almost 40 years from the date when actual physical possession was taken and development over the said land has already taken place, renders the petition liable to be dismissed for gross delay and laches.
23. The learned Senior Counsel for the petitioners has also placed reliance on an order of the Hon'ble Supreme Court in Special Leave to Appeal (C) No.38922 of 2013 inre: State of U.P. and another vs. Vinod Kumar Tripathi and others, annexed as Annexure-7 to the writ petition. Sri Asit Chaturvedi, learned Senior Advocate, representing the petitioners, submitted that in the said order the Hon'ble Supreme Court Court has clearly held that it is only the District Magistrate who has been authorised to take possession of the land under Section 10(6) of the 1976 Act and consequently the judgment of this Court by which the benefit of the Repeal Act, 1999 had been given to the petitioners, was not interfered with. Placing reliance on the said judgment, learned Senior Counsel has vehemently argued that keeping in view the said order even the land of the petitioners, physical possession of which was not taken legally, should revert back to them. We have traced out and gone through the judgment of this Court in the case of Vinod Kumar Tripathi in Writ-C No.7421 of 2012 which was challenged before the Hon'ble Supreme Court and what we find from the said judgment is that in the said writ petition the petitioner clearly prayed for a direction to the respondents to not interfere in his peaceful physical possession over the land which has been declared as surplus under the 1976 Act. The main ground raised in the said writ petition was also that the actual physical possession of the land was never taken. Accordingly, the judgment in the case of Vinod Kumar Tripathi (supra) will have no applicability in the facts of the instant case.
24. The learned counsel for the petitioner has also placed reliance on a bunch of petitions decided by this Court, leading writ petition being Writ Petition No.8410 (M/B) of 2008, copy of the judgment of which has been annexed as Annexure-6 to the writ petition. The said judgment of this Court is again clearly distinguishable inasmuch as the common ground in the said bunch of the writ petitions was that the petitioners were in actual physical possession of their land and that the physical possession had not been taken over by the State and its authorities. Accordingly, the said judgment is also distinguishable and would have no applicability in the facts of the instant case.
25. On the other hand, the judgments of the Hon'ble Supreme Court in the case of Aflatoon (supra) and Mutha Associates (supra) have full applicability in the facts of the instant case. The Constitution Bench judgment in the case of Aflatoon (supra) was in a case in which the land owners had not approached the Court after the declaration under Section 6 of the Land Acquisition Act was issued by the Collector, rather it was only after the notices under Section 9 of the Land Acquisition Act were issued that they came forward to challenge the same. The Hon'ble Supreme Court held that owners of the land were not justified in sitting on the fence and allowing the Government to complete the acquisition proceedings and held as under:-
"11. ..... There was apparently no reason why the writ petitioners should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the public purpose were not specified. A valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners."
26. The judgment in the case of Aflatoon (supra) has been referred to and cited by the Hon'ble Supreme Court in Mutha Associates case (supra) wherein the Hon'ble Supreme Court held as under:-
"22. The view taken by the Constitution Bench in Aflatoon case has been reiterated by another Constitution Bench decision in Indrapuri Griha Nirman Sahakari Samiti Ltd. v. State of Rajasthan. To the same effect are the decisions of this Court in Municipal Corpn. of Greater Bombay v. Industrial Development Co. (P) Ltd., Ramjas Foundation v. Union of India and Larsen & Toubro Ltd. v. State of Gujarat. The common thread that runs through all these decisions is that in order to succeed in a challenge to the acquisition proceedings the interested person must remain vigilant and watchful. If instead of doing so, the interested person allows grass to grow under his feet, he cannot invoke the powers of judicial review exercisable under Article 226 of the Constitution. The failure of the interested persons to seek redress at the appropriate stage and without undue delay would in such cases give rise to an inference that they have waived of their objections to the acquisitions. The bottom line is that the High Court can legitimately decline to invoke their powers of judicial review to interfere with the acquisition proceedings under Article 226 of the Constitution if the challenge to such proceedings is belated and the explanation offered a mere moonshine as is the position in the case at hand. The High Court has in the fact situation of the case rightly exercised its discretion in refusing to interfere with the acquisition proceedings."
27. Accordingly when the issue arising in the instant cases are tested on the touch stone of the law laid down by the Hon'ble Supreme Court in the Constitution Bench judgment of Aflatoon (supra) and further reiterated in the case of Mutha Associates (supra), what we find is that the petitioner does not have any reasonable explanation for gross delay and laches in approaching this Court for the reliefs set forth in the petition. The benefit of the order dated 9.2.1977 cannot be given to the petitioners after almost four decades more particularly when the physical possession of the land is no longer with the petitioners and orders passed under the provisions of Section 8(4) of the 1976 Act way back in the year 1977 were never challenged by the petitioners and allowed to attain finality as well as the fact that development has already taken place over the petitioners' land. The technical challenge to the taking over of the petitioners' land after almost four decades cannot be appreciated and gone into by this Court after a long lapse of almost 40 years.
28. Keeping in view the facts of the case and discussions made above, we are of the considered opinion that all the writ petitions merit to be dismissed on account of gross and unexplained delay and laches and consequently all the writ petitions are dismissed. The original records have been handed back to the respondents.
Order Date :- 05.03.2018.
Rakesh
(Abdul Moin) (Vikram Nath)