Allahabad High Court
Lal Singh And Ors. vs Competent Authority Urban Land Ceiling ... on 23 January, 2023
Bench: Suneet Kumar, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- WRIT - C No. - 69115 of 2009 Petitioner :- Lal Singh And Ors. Respondent:-Competent Authority Urban Land Ceiling And Regulation and Ors. Counsel for Petitioner :- J.K. Shisodhaa,B. Upadhyaya,Rajneesh Pratap Singh Counsel for Respondent :- C.S.C. Hon'ble Suneet Kumar,J.
Hon'ble Rajendra Kumar-IV,J.
1. Heard learned counsel for the parties.
2. By the instant writ petition, petitioners and the subsequent purchasers seek direction to the State-respondent not to dispossess the petitioners from the land declared surplus in proceedings under the U.P. Urban Land (Ceiling and Regulation) Act, 1976 (for short 'Act').
3. The land in dispute being Plot No. 397, admeasuring 1.370 hectares, situated in Asadpur Kayam, Tehsil Koil, Aligarh. As per the pleadings set up by the petitioners, the predecessor in interest of the petitioners, namely, Chunni Lal, filed statement under Section 6 of the Act. Under Section 8(4), the order came to be passed on 18 March 1985, against Chunni Lal, by the competent authority. No objections was filed by the land owner. The final statement, thereafter, was issued under Section 9 on 4 October 1985. Thereafter, notification under Section 10(1) with regard to the acquisition of land in excess of ceiling limit was issued, followed by publication of notification under Section 10(3) declaring the land to have vested absolutely in the State Government free from all encumbrances. The notification under Section 10(1) was issued on 27 February 1988, followed by declaration under Section 10(3) of 20 September 1988. Thereafter, pursuant to notice under Section 10(5) of the Act, issued on 31 May 1993, the possession of the land was taken by the competent authority not faced with any objections.
4. The learned counsel for the petitioners submits that no notice came to be issued under Section 10(6) for taking possession forcefully from the petitioners, further, it is alleged that pursuant to notice under Section 10(5), the land in excess was not surrendered. It is alleged that possession of the land was never delivered by predecessor in interest, i.e., Chunni Lal.
5. It appears, thereafter, the petitioners herein, subsequently, sold and consequently transferred the excess land in favour of the proposed petitioners who have sought impleadment.
6. In the counter affidavit filed on behalf of the respondents, a categorical stand has been taken that no objection against the notice under Section 10(5) of the Act was filed by the land owner, consequently, there was no occasion for proceeding under Section 10(6).
7. Further, it is being stated that the land in question has since been transferred to Aligarh Development Authority on 24 February 2001, and development work over the said land has been undertaken.
8. On specific query, the learned counsel for the petitioners has not disclosed as to when the land after notification under Section 10(1)/10(3) was transferred by way of registered sale-deed.
9. We have considered the rival submissions and perused the material placed on record.
10. It is not in dispute that the notice under Section 10(5) was issued on 31 May 1993, which was not objected to by the land owner, therefore, the occasion of issuing notice under Section 10(6) to the land owner did not arise. The petitioners herein waited for long and for the first time approached this court in 2006, by filing writ petition being Writ Petition No. 49369 of 2006, which came to be disposed of by order dated 7 September 2009, directing the Collector to decide the representation. It appears that the representation was not decided, hence, the present writ petition came to be filed in 2009.
11. In this backdrop, it is evident that the petitioners have raised the issue of possession and notice under Section 10(6) the Act after a lapse of 13 years and there is no explanation for the delay.
12. In the case of State of Assam vs. Bhaskar Jyoti Sharma and others, (2015) 5 SCC 321 (Paras-16, 17 and 19), Hon'ble Supreme Court held as under:
"16. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure.
17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram's case (supra). That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram's case (supra) considering whether the word 'may' appearing in Section 10(5)gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5)and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of law did not fall for consideration in that case. In our opinion, what Section 10(5)prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because Bhabadeb Sarma-erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so.
19. In support of the contention that the respondents are even today in actual physical possession of the land in question reliance is placed upon certain electricity bills and bills paid for the telephone connection that stood in the name of one Mr. Sanatan Baishya. It was contended that said Mr. Sanatan Baishya was none other than the caretaker of the property of the respondents. There is, however, nothing on record to substantiate that assertion. The telephone bills and electricity bills also relate to the period from 2001 onwards only. There is nothing on record before us nor was anything placed before the High Court to suggest that between 7th December, 1991 till the date the land in question was allotted to GMDA in December, 2003 the owner or his legal heirs after his demise had continued to be in possession. All that we have is rival claims of the parties based on affidavits in support thereof. We repeatedly asked learned counsel for the parties whether they can, upon remand on the analogy of the decision in the case of Gyanaba Dilavarsinh Jadega (supra), adduce any documentary evidence that would enable the High Court to record a finding in regard to actual possession. They were unable to point out or refer to any such evidence. That being so the question whether actual physical possession was taken over remains a seriously disputed question of fact which is not amenable to a satisfactory determination by the High Court in proceedings under Article 226 of the Constitution no matter the High Court may in its discretion in certain situations upon such determination. Remand to the High Court to have a finding on the question of dispossession, therefore, does not appear to us to be a viable solution."
(Emphasis supplied by us)
13. The aforesaid judgment of Hon'ble Supreme Court in the case of Bhaskar Jyoti Sharma and others (supra) has been followed by a coordinate bench of this Court in the case of Shiv Ram Singh vs. State of U.P. and others, 2015 (7) ADJ 630 and the writ petition was dismissed on the ground of laches, observing as under:
"We must also advert to another aspect of the matter particularly having regard to the recent decision of the Supreme Court in Bhaskar Jyoti Sarma (supra). The petitioner moved the first writ petition in 2002 nearly three years after the Repeal Act had come into force. After the earlier writ petition was disposed of by directing the District Magistrate to pass an order on the representation of the petitioner, an order was passed by the District Magistrate on 10 May 2007. The petitioner thereafter waited for a period of over two years until the present writ petition was filed in July 2009. If the petitioner had been dispossessed of the land without due notice under Section 10(5), such a grievance could have been raised at the relevant time. As a matter of fact, it has been the case of the State all along that a notice under Section 10(5) was, in fact, issued in the present case which would be borne out from the original file which has been produced before the Court. The issue is whether such a grievance could be made long after, before the Court. The petitioner had waited for nearly three years after the Repeal Act came into force to file the first writ petition and thereafter for a period of over two years after the disposal of the representation despite the finding of the District Magistrate that possession was taken over on 25 June 1993. In our view, such a belated challenge should not, in any event, be entertained."
(Emphasis supplied by us)
14. In Shivgonda Anna Patil Vs. State of Maharashtra, (1999) 3 SCC 5 wherein, the Supreme Court while dealing with section 10 of the Act held that the writ petition under Article 226 for reopening the proceeding on the ground that the competent authority had not taken into consideration certain fact, filed after ten years, after the excess land was vested in the State Government was rightly summarily dismissed by the High Court.
15. While deciding the question of delay and laches in preferring the petition under Article 226, the Supreme Court in Municipal Council, Ahmednagar Vs. Shah Hyder Beig (2000) 2 SCC 48 held that the equitable doctrine, namely, "delay defects equity" has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-by to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law.
16. Recently, in Kapilaben Ambalal Patel and Others Vs. State of Gujarat, 2021 (12) SCC 95, Supreme Court declined to accept the pleas setup by the legal heirs/representatives of the original land holder on the ground of inordinate delay. The Court noted the submission of the land owner:
"Feeling aggrieved, the landowners have approached this Court. It is urged that there is no tittle of evidence to substantiate the fact asserted by the respondent State that physical possession of the land in question has been taken over on 20-3-1986. It was merely a paper-possession in the form of possession panchnama. According to the appellants, de facto possession of the subject land as on the date of the Repeal Act is crucial and entails in abatement of all the actions of the State authorities under the 1976 Act. Mere issuance of notification under Section 10(3) of the 1976 Act regarding deemed vesting of the land in the State is not enough for the purposes of the Repeal Act. Reliance has been placed on Vinayak Kashinath Shilkar Vs. Collector & Competent Authority, (2012) 4 SCC 718, State of U.P. Vs. Hari Ram (2013) 4 SCC 280, Gajanan Kamlya Patil vs. Additional Collector & Competent Authority (ULC) (2014) 12 SCC 523 and Mangalsen Vs. State of U.P. (2014) 15 SCC 332. The consistent view of this Court is that physical possession must be taken by the State authorities, failing which the proceedings shall abate on account of the Repeal Act. The appellants have relied on revenue records to show that the continued possession remained with the appellants/landowners even after the possession panchnama was made on 20-3-1986. The revenue entries have presumptive value and the respondent State had failed to rebut the same."
17. In Paragraph 25 of Kapilaben Ambalal Patel (supra), the Court noted the delay and declined to interfere with the order of the High Court. Relevant portion reads thus:
"Furthermore, in the grounds all that is asserted is that the High Court erred in holding that there was delay of 14 years in filing of writ petition and in not appreciating that the notice under Section 10(5) of the 1976 Act dated 23-1-1986, was not served upon Ambalal Parsottambhai Patel as he had already expired on 31-12-1985 and notice sent to him was returned bacy on 2-2-1986 unserved with remark "said owner has expired". Further, the legal heirs of Ambalal Parsottambhai Patel ought to have been served with the said notice.........Be that as it may, we are not inclined to reverse the conclusion recorded by the Division Bench of the High court that the writ petition filed by the appellants was hopelpessly delayed and suffered from laches. That is a possible view in the facts of the present case."
18. For the reasons aforestated and also in view of the law laid down by Hon'ble Supreme Court in the case of Bhaskar Jyoti Sharma (supra), Kapilaben Ambalal Patel (supra) and a coordinate bench decision of this Court in the case of Shiv Ram Singh (supra), we do not find any merit in the writ petition, apart from the fact that it is also hit by inordinate unexplained laches. Consequently, the writ petition is dismissed.
Order Date :- 23.1.2023 Mukesh Pal