Allahabad High Court
Basant Pal And Others vs State Of U.P. And Another on 14 October, 2014
Bench: Rajes Kumar, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD COURT NO.32 CIVIL MISC. WRIT PETITION NO.13437 OF 2006 Basant Lal and others. ....Petitioners Vs. State of U.P. and another. ....Respondents ************ Hon'ble Rajes Kumar,J.
Hon'ble Shashi Kant, J.
( Delivered by Hon'ble Rajes Kumar, J.) Heard Sri Raj Karan Yadav, learned counsel for the petitioners and Sri Pankaj Rai, learned Additional Chief Standing Counsel, appearing on behalf of the respondents.
In the present writ petition, the petitioners are seeking the following reliefs:
"(i) issue a writ order or direction in the nature of mandamus commanding the respondent not to interfere in the peaceful possession of the petitioners.
(ii) issue any other writ order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(iii) To award the costs of this writ petition in favour of the petitioners."
In the present writ petition, father of the petitioners had a land at Lalpur, Post Shivpur, district Varanasi. Under the provisions of The Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the "Act"), a case no.24/778/220/85-86. State Vs. Lalta was registered. It appears that the father of the petitioners has submitted the details of the landed property, owned by him. An ex-parte order dated 24.04.1985 has been passed by the competent authority, under Section 8(4) of the Act declaring 513.88 sq. mtr. land in excess. It was the case of the petitioners that neither any notice nor any opportunity of hearing has been given before passing the order. It was the case of the petitioners that no notice under Section 9 of the Act has been issued. The proceedings under Sections 10 (1) and 10 (3) of the Act have also been initiated ex-parte. No notice under Section 10 (5) of the Act has also been served upon the petitioners. The physical possession has not been taken and the name of the State is only mentioned by the Tehsildar, Varanasi on 06.04.1998. The petitioners are still in possession of the property. Neither any step has been taken to take possession nor any compensation has been paid. The petitioners are doing the farming, which is only source of income.
The present writ petition has been filed with the pleading that the notice under Section 10 (5) of the Act has not been served upon the petitioners and nor any step has been taken under Section 10 (6) of the Act to take possession of the excess land. The land is still in possession of the petitioners, on which the petitioners are doing the farming. Thus, in view of the existing fact, the petitioners are entitled for the benefit of Sections 3 and 4 of Repeal Act, 1999 (hereinafter referred to as the "Repeal Act").
In the counter affidavit filed by Sri V.K.Singh, Assistant Engineer, Urban Land Ceiling, Varanasi, it is stated that on the basis of the statement being submitted by the petitioners's father, draft statement under Section 8 (3) of the Act along with a notice was issued to the original holders. As per the report of Chainman, dated 11.02.1986, the said notice was personally served upon the original land holders, Sri Lalta. It is further stated that the father of the petitioners did not file any objection/evidence against the said notice, issued under Section 8 (3) of the Act. As such, the competent authority vide order dated 24.04.1986 passed order under Section 8 (4) of the Act declaring 513.88sq. mtr. as surplus land.
With regard to the averments made in para 7 of the writ petition, that no notice under Section 9 of the Act has been issued. It is stated that the notice has been issued vide office letter no.670, dated 28.08.1986 but no proof regarding the service of said notice is available on record.
With regard to the averments made in para 8 of the writ petition regarding ex-parte proceeding under Sections 9, 10 (1) and 10 (3) of the Act in respect of the surplus land, it is stated that the notification under Sections 10 (1) and 10 (3) of the Act were issued and the same were published in the Government Gazette on 06.09.1986 and 06.03.1987 respectively.
With regard to the averments made in para 9, 10 and 11 of the writ petition that no notice under Section 10 (5) of the Act was served neither upon the petitioners or their father; the State did not take any action to possess the land and the petitioners are in physical possession over the land; the name of State is only mentioned by Tehsildar, varanasi on 06.04.1998; the possession was not taken and the State Government did not take any steps to take possession and did not pay any compensation to the petitioners or their father, the aforesaid averments have been replied by para 11 of the counter affidavit, which reads as follows:
"That in reply to the contents of paras 9, 10 and 11 of the writ petition, it is stated that thereafter, orders with regard to information under Section 10 (5) of the Act was issued, but no proof of service of sand order upon the land-holders has been made available in the record of respondent no.2. After completing the proceedings under Section 10 (5) of the Act, orders for transfer of name over the declared surplus land was passed on 6.4.98. it is stated that proof of taking possession of the declared surplus land by the concerned authority has been made available in the record filed in the office of respondent no.2, but the signatures of officer taking possession of the declared surplus land, Khatedar and witness, have not been put/made on the same. It is stated that no compensation has been given to the land-holder in respect of declared surplus land. Averments to the contrary are denied."
In para 15 of the writ petition, it is specifically stated that the petitioners are doing farming and farming is the only source to maintain their family, has not been disputed. In reply, in the counter it is only stated that after completing the formalities under Sections 10(1), 10(3) and 10 (5) of the Act, the declared surplus land has been transferred in favour of Varanasi Development Authority. There is no averment that any physical possession has been delivered to Varanasi Development Authority.
Learned counsel for the petitioners submitted that the writ petition has been entertained on 06.03.2006 and interim order has been passed to the extent, that if possession of the surplus land had not been taken in the proceedings under the Urban Land Ceiling Act, now repealed, status-quo with regard to the possession of the spot will be maintained by the parties. He further submitted that notice under Section 10 (5) of the Act have not been served upon the petitioners. There is no evidence on record about the service of notice under Section 10 (5) of the Act. The petitioners have neither surrendered nor given the possession of the said excess land. In the counter affidavit, it is admitted that there is no evidence about the service of notice under Section 10 (3) of the Act. He further submitted that there is no evidence of taking any action under Section 10 (6) of the Act, for taking the possession. In para 11 of the counter affidavit it is admitted that the proof of taking possession of the declared surplus land by the concerned authority has been available in the record, filed in the office of respondent no.2 but the signature of officer taking possession of the declared surplus land, Khatedar and witness, have not been put/made on the same, establishes that physical possession of the said surplus land, has not been taken. It is also admitted that no physical possession has been taken. He submitted that since the physical possession of the surplus land has not been taken, the petitioners are entitled for the benefit of Sections 2 and 3 of the Repeal Act. He further submitted that mere making entry in the record and alleged transfer of said surplus land in favour of Varanasi Development Authority, is not sufficient. The possession should not only de jure but it should be de facto. The respondents are not able to show from the record that physical possession of the surplus land has been taken by the concerned authority and, thereafter, physical possession has been given by such competent authority to Varanasi Development Authority, therefore, petitioners are entitled for the benefit of Sections 2 and 3 of the Repeal Act.
Sri Pankaj Rai, learned Additional Chief Standing Counsel submitted that after completing all the required formalities under the Act, name of State has been recorded and subsequently, surplus land has been transferred to Varanasi Development Authority and, therefore, entire proceeding has been concluded under the Act and the petitioners are not entitled for the benefit of Repeal Act.
We have heard rival submissions and perused the record.
In the present case, it is not necessary to go into the question whether the order under Section 8 (4) of the Act was passed ex-parte or after giving opportunity of hearing. Admittedly, there is no evidence on record to show that the notice under Section 10 (3) of the Act has been served upon the father of the petitioners or upon the petitioners at any point of time. There is no evidence on record to show that physical possession of the surplus land has been taken under Section 10 (6) of the Act. It is settled principle of law that the possession should not only be de jure but it should be de facto. Since the physical possession has not been taken, the petitioners are entitled for the benefit under Sections 2 and 3 of the Repeal Act and the entire proceeding stand repealed and abated under the Act.
It would be appropriate to refer Section 10 of the Act, which reads as follows:
"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 persons 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 authorised 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 a 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."
The Act 36 of 1976 was repealed by Section 2 of the Repeal Act, 1999 and the Repeal Act was adopted in the State of U.P. on March 18, 1999. The Repeal Act contains a saving clause vide Section 3 which reads as follow:
"3. Saving.-
(I) The repeal of the principal Act shall not affect-
(a) The vesting of any vacant land under sub-section 10, possession of which has been taken over by the state government or any person duly authorized by the state government in this behalf or by the competent authority;
(b) The validity of any order granting exemption under sub- section (I) of section 20 or any action taken there under, 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 (I) 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 authorized 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."
Apex Court in the case of State of Uttar Pradesh Vs. Hari Ram, reported in (2013) 4 SCC, 280, held as follows:
"30. Vacant land, it may be noted, is not actually acquired but deemed to have been acquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in hands of few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as sub-sections (5) and (6) of Section 10, the words ''acquired' and ''vested' have different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislative intent.
31. The ''vesting' in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The court in Maharaj Singh v. State of UP and Others (1977) 1 SCC 155, while interpreting Section 117(1) of U.P. Zamindari Abolition and Land Reform Act, 1950 held that ''vesting' is a word of slippery import and has many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The court in Rajendra Kumar v. Kalyan (dead) by Lrs. (2000) 8 SCC 99 held as follows:
"We do find some contentious substance in the contextual facts, since vesting shall have to be a "vesting" certain. "To vest, generally means to give a property in." (Per Brett, L.J. Coverdale v. Charlton. Stroud's Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. To "vest", cannot be termed to be an executor devise. Be it noted however, that "vested" does not necessarily and always mean "vest in possession" but includes "vest in interest" as well."
34. Sub-section (5) of Section 10, for the first time, speaks of "possession" which says where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorized by the State Government.
35. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) to Section 10, there is no necessity of using the expression "where any land is vested" under sub- section (5) to Section 10. Surrendering or transfer of possession under sub-section (3) to Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) to Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while sub-section (6) of Section 10 contemplates a situation of forceful dispossession.
36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10. Sub-section (6) to Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under sub- section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force - as may be necessary - can be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub- section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted only in a situation which falls under sub-section (6) and not under sub-section (5) to Section 10. Sub-sections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice that is "peaceful dispossession" and on failure to surrender or give delivery of possession under Section 10(5), than "forceful dispossession" under sub-section (6) of Section 10.
37. Requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word ''may' has been used therein, the word ''may' in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 11 is that it might result the land holder being dispossessed without notice, therefore, the word ''may' has to be read as ''shall'.
39. Above-mentioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under subsection (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land.
41. Let us now examine the effect of Section 3 of the Repeal Act 15 of 1999 on sub-section (3) to Section 10 of the Act. The Repeal Act 1999 has expressly repealed the Act 33 of 1976. The Object and Reasons of the Repeal Act has already been referred to in the earlier part of this Judgment. Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case.
42. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-Section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act.
The aforesaid decision of the Apex Court has been followed by another Division Bench of the Apex Court in the case of Gajanan Kamlya Pateil Vs. Addl. Collector & Comp. Auth. & Ors., reported in JT 2014 (3) SC, 211. The Apex Court held as follows:
"We have, therefore, clearly indicated that it was always open to the authorities to take forcible possession and, in fact, in the notice issued under Section 10 (5) of the ULC Act, it was stated if the possession has not been surrendered, possession would be taken by application of necessary force. For taking forcible possession, certain procedures had to be followed. Respondents have no case that such procedures were followed and forcible possession was taken. Further, there is nothing to show that the Respondents had taken peaceful possession, nor there is anything to show that the Appellants had given voluntary possession. Facts would clearly indicate that only de jure possession had been taken by the Respondents and not de facto possession before coming into force of the repeal of the Act. Since there is nothing to show that de factor possession had been taken taken from the Appellants prior to the execution of the possession receipt in favour of MRDA, it cannot hold on to the lands in question, which are legally owned and possessed by the Appellants. Consequently, we are inclined to allow this appeal and quash the notice dated 17.2.2005 and subsequent action taken therein in view of the repeal of the ULC Act. The above reasoning would apply in respect of other appeals as well and all proceedings initiated against the Appellants, therefore, would stand quashed."
In the present case, as stated above, there is nothing on record to show that the respondents have taken the physical possession nor there is anything on record to show that the petitioners had voluntarily given the possession. Facts would clearly indicate that only de jure possession had been taken by the respondents and not de facto possession before coming into force of the Repeal Act. Since there is nothing on record that de facto possession had been taken from the petitioners and, subsequently, it had been transferred to Varanasi Development Authority, it can not hold on, to the land in question, which are legally owned and possessed by the petitioners.
Consequently, we inclined to allow this writ petition and quash the entire proceeding under the Act in view of the Repeal Act.
Dt.14.10.2014.
R./