Allahabad High Court
State Of U.P. And Anr. vs Yogendra Kumar And 2 Others on 12 April, 2022
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 05.3.2022 Delivered on 12.04.2022 Case :- SECOND APPEAL No. - 1196 of 2013 Appellant :- State Of U.P. And Anr. Respondent :- Yogendra Kumar And 2 Others Counsel for Appellant :- Sanjay Goswami A.C.S.C. Counsel for Respondent :- D.P. Singh,Raghav Dwivedi,Srish Chand,Vishnu Gupta Hon'ble Siddharth,J.
1. Heard Sri P. P. Chaudhary, learned counsel for the appellants and Sri Raghav Dwivedi, learned counsel for the respondents and perused the lower court record.
2. This second appeal has been preferred against the judgement and decree dated 12.3.2013 and 19.3.2013 passed by Additional District Judge/Special Judge, S.C./S.T. Act, Meerut, in Civil Appeal No. 185 of 2008 and judgement and decree dated 18.10.2008 passed by Additional Civil Judge (Senior Division), Court No.6, Meeut, in Original Suit No. 663 of 2004 (Yogendra Kumar and others Vs. State of U.P. and Another).
3. The plaintiffs' case in brief is that Ramesh Chand, father of the plaintiffs, was the owner of the disputed land situated in village, Shobhapur, Pargana Tehsil and District Meerut, who died in the year 1983. Apart from the plaintiffs, Ramesh Chand left behind no legal heirs. The plaintiffs are cultivating the land in dispute as Bhumidhar with transferable right and are recorded as such.
4. After the Urban Land (Ceiling and Regulation) Act, 1976, (hereinafter referred to as ''Act of 1976' only) came into force, their father, Ramesh Chand, filed return regarding his entire land before the defendant No.2 on 06.10.1976 and a Case No. 1666 (State Vs. Ramesh Chand) was registered. After receiving the notice issued under Section 8(3) of the Act, he filed objection stating that the land is being used for agricultural purposes only and cultivation is being carried on thereon. The aforesaid land is only source of survival of the family. The Khatauni and Khasra 1382, 1383, 1384 Fasli were filed in evidence. The defendant No.2 informed the father of the plaintiffs that the next date for evidence shall be intimated, which was never informed. The plaintiffs went to collect their Jotbahi from Tehsil on 06.01.1996. Then they came to know about the order dated 29.8.1991 passed under Section 8(4) of the Act. They preferred an Appeal No. 16/96 against the same, which was abated by the order dated 25.11.1999. The defendants were never given any compensation of the land nor possession of the same was taken from them. Now the defendants are trying to take forcible possession over their land and hence the suit was instituted by the plaintiffs praying for a decree of permanent injunction regarding the suit property.
5. The defendants filed their written statement denying most of the plaint's averments and further stated that the suit of the plaintiffs is not maintainable without declaration of their rights from the competent revenue court. The suit is barred by Order 7, Rule 11 C.P.C. and Section 80 C.P.C. and also by the provisions of Act, of 1976. After declaration of their land as surplus, the same was notified in official gazette dated 17.9.1988 by the State Government and thereafter vests in the State Government. The name of State Government has been recorded in the revenue record. Land being agricultural, the declaration regarding title can only be granted by the revenue court. After 4.3.1994 the possession of the plaintiffs is not there over the land in dispute and on account of abatement of appeal filed under the provision of Urban Ceiling Act by the order dated 29.8.1981 proceedings have attained finality.
6. On the basis of the pleadings of the parties, the trial court framed the following issues:-
1. Whether the plaintiffs are owners in possession over the disputed property?
2. Whether the order dated 29.8.1981 passed in Case No. 1666 (State Vs. Ramesh Chand) is void and illegal?
3. Whether the proceedings of Case No. 1666 (State Vs. Ramesh Chand) has abated on account of coming into force of the Urban Land (Ceiling and Regulation) Repeal Act, 1999?
4. Whether the compensation of the disputed land has been paid to the father of the plaintiffs, if yes, its effect?
5. Whether the suit is barred by Section 41 of the Specific Relief Act.
6. Whether the suit is barred by Order 7, Rule 11 C.P.C. and deserves to be dismissed?
7. Whether the suit is barred by Section 80 C.P.C.?
8. Whether the suit is barred by provisions of the Urban Land (Ceiling and Regulation) Act, 1976?
9. Whether the suit is barred by principles of res-judicata?
10. Relief?
7. The trial court decided issue Nos. 1, 2 and 3 together. It considered the documentary and oral evidence led before it and found that the father of the plaintiffs (Ramesh Chand) was admittedly the owner of the possession of the property in dispute. He filed return in the office of defendant No.2 and Case No. 1666 was registered. It further found that the appellate authority under the Urban Land Ceiling Act abated the proceedings as per the provisions of the Urban Land (Ceiling And Regulation) Repeal Act, 1999. The trial court found that after the abatement of the ceiling proceedings, the plaintiffs would be considered to be recorded tenure holder in possession of their land and the State would be deemed to have never been recorded over the same.
8. The trial court decided that the entire proceedings of Case No. 1666 was illegal and void and has become non-est after the enforcement of Urban Land (Ceiling and Regulation) Act, 1999.
9. Regarding issue no.4, the trial court found that the defendants failed to prove that the father of the plaintiffs or plaintiffs were given any compensation for the surplus land.
10. Regarding issue Nos. 5, 6 and 7 the trial court found that they have not been pressed at the time of argument and therefore no findings were recorded.
11. Regarding issue no.8, the trial court found that the proceedings under Urban Land (Ceiling and Regulation) Act, 1976 has already been abated, therefore, the suit is not barred by Urban Land (Ceiling and Regulation) Act, 1976.
12. Issue No.9 was decided holding that the proceedings of Case No. 1666 have already been abated coming into force of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 and therefore, the suit is not barred by principles of res-judicata.
13. Finally issue no.10 was decided holding that the plaintiffs are entitled to the reliefs claimed and the suit of the plaintiffs was decreed for a decree of permanent injunction against the defendants restraining them from taking of possession over the land of the petitioners and interference over the same permanently.
14. The defendants-appellants preferred a civil appeal No. 185 of 2008, wherein the first appellate court has affirmed the finding of the trial court and dismissed the civil appeal.
15. This appeal was admitted on 17.11.2021 for hearing on the following substantial questions of law as under:-
"i. Whether, the courts below could at all take away the effect of vesting of excess vacant land under Section 10(3) of the Act where the possession was taken by the State much before the Repeal of Act 1976 ?
ii. Whether, the courts below were justified in holding the plaintiffs/respondents in possession when memo of possession prepared on the spot in pursuance of the notice/Parwana issued under Section 10(5) of the Act by the authority authorized in this behalf at the time of taking over the possession of excess vacant land?
iii. Whether, the courts below have exceeded in their jurisdiction to nullify vesting of land in State when the possession was taken by it of the excess vacant land, prior to repeal of the Act, 1976, after repeal of the Said Act? "
16. Learned counsel for the defendants-appellants has submitted that the father of the plaintiffs, Ramesh Chand, never challenged the order dated 29.8.1981 passed by the competent authority under the Urban Land Ceiling Act, whereby the area about 23331 square meters land was declared surplus. The plaintiffs claimed that Ramesh Lal died in the year 1983 and they continued with the possession and cultivation of the land left behind by their father and preferred an Appeal No. 16 of 1996 when the Urban Land (Ceiling and Regulation) Repeal Act, 1999, was about to be imposed. He has submitted that prior to coming into force of the Repeal Act, 1999, the possession of the land was taken and the Dakhalnama Paper No. 77/Ga was prepared. The aforesaid document has wrongly been discarded by the courts below. Hence the possession of the land was taken. The plaintiffs would be deemed to be trespassers over the land in dispute.
17. Learned counsel for plaintiffs-respondents has submitted that Dakhalnama relied upon by the learned counsel for the plaintiffs-appellants was not in accordance with law. It does not bears signature of two witnesses, affected parties and description of the property. He has submitted that alleged Dakhalnama dated 4.3.1984 is forged document. The defendants' witness have failed to prove the taking over the possession of the property in accordance with law.
18. After hearing the rival contentions, this Court finds that the fate of this appeal depends upon the evidence whether the possession of the excess land of the father of the plaintiffs was taken by the defendants in accordance with law or not.
19. In the record of the trial court, Dakhalnama dated 4.3.1984 regarding the land declared surplus is on record.
20. In the Dakhalnama, there is no signature of the father of the plaintiffs, Ramesh Chand. Two witnesses have not been named, but from signatures their names appear to be Ten Singh and Madan, both resident of village Shobhapur. The name and designation of the person, taking possession of the land, has not been mentioned and only initial has been made by mentioning the date of signature as 4.3.1994.
21. It is relevant to note that on the date possession of surplus land was taken, the father of the plaintiffs, Ramesh Chand, had already died in 1983, while possession was taken on 4.3.1994. The plaintiffs had stepped into the shoes on their father at that time and at the time of possession of the land notice should have been given to the plaintiffs and their signatures should have been taken on the memo of possession. Under Section 10 of the Urban Ceiling Act, the giving of notice under Sections 5 and 6 is mandatory. The land holder cannot be dispossessed from his land without giving such notice. The defendants failed to prove that they were issued any such notice to the father of the plaintiffs, Ramesh Chand, or plaintiffs after the death of Ramesh Chand in 1983, before taking possession of the land in dispute on 04.3.1994.
22. The State Government in exercise of powers conferred under Section 35 Act of 1976, framed procedure for taking of possession of vacant land in excess of the prescribed ceiling limit which is as follows:-
"The Uttar Pradesh Urban Land Ceiling (Taking of Possession payment of amount and Allied Matters) Directions, 1983 (Directions issued by the State Government under Section 35 of the Act, 1976):
"In exercise of the powers under Section 35 of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No.33 of 1976), the governor is pleased to issue the following directions relating to the powers and duties of the Competent Authority in respect of amount referred to in Section 11 of the aforesaid Act to the person or persons entitled thereto:
1. Short title, application and Commencement -These directions may be called the Uttar Pradesh Urban Land Ceiling (Taking of Possession Payment of Amount and Allied Matters Directions, 1983)
2. The provisions contained in this direction shall be subjected to the provisions of any directions or rules or orders issued by the Central Government with such directions or rules or orders.
3. They shall come into force with effect from the date of publication in the Gazette.
2. Definitions:-
3. Procedure for taking possession of vacant Land in excess of Ceiling Limit-(1) The Competent Authority will maintain a register in From No.ULC -1 for each case regarding which notification under sub-section (3) of Section 10 of the Act is published in the Gazette.
4. (2) an order in Form No.ULC-II will be sent to each land holder as prescribed under sub-section (5) of Section 109 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No.ULC-1.
(3) On possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) of Section 10 of the Act, entries will be made in a register in Form ULC-III and also in Column 9 of the Form No.ULC-1. The Competent Authority shall in token of verification of the entries, put his signatures in column 11 of Form No.ULC-1 and Column 10 of Form No.ULC-III.
Form No.ULC-1 Register of Notice u/s 10-(3) and 10(5) 1 2 3 4 5 6 7 8 9 10 11 Sr. No. Serial No. of Register of receipt Sl. No. of Register of taking possession Case Number Date of notification under Section 10 (3) Land of acquired village Mohali Date of taking over posses-sion Remarks Signature of Competent authority Form No. ULC-II Notice order u/s 10(5) (See clause (2) of Direction (3) In the Court of Competent Authority U.L.C. ...............
No..................... Date ..................
Sri/Smt...............................T/o ........................................
In exercise of the powers vested un/s 10(5) of the Urban Land Ceiling and Regulation Act, 1976 (Act No.33 of 1976, you are hereby informed that vide Notification No....... dated ..... under section 10(1) published in Uttar Pradesh Gazette dated ...... following land has vested absolutely in the State free from all encumbrances as a consequence Notification u/s 10(3) published in Uttar Pradesh Gazette dated ....... Notification No......... dated .... With effect from .......... you are hereby ordered to surrender or deliver the possession of the land to the Collector of the District Authorised in this behalf under Notification No.324/II-27- U.C.77 dated February 9, 1977, published in the gazette, dated March 12, 1977, within thirty days from the date of receipt of this order otherwise action under sub-section (6) of Section 10 of the Act will follow.
Description of Vacant Land Location Khasra number identification Area Remarks 1 2 3 4 Competent Authority ...............................
...............................
Dated...............................
No. Copy forwarded to the Collector ............ with the request that action for immediate taking over of the possession of the above detailed surplus land and its proper maintenance may, kindly be taken an intimation be given to the undersigned along with copy of certificate to verify.
Competent Authority ...............................
..............................."
23. Above-mentioned directives make it clear that sub-section (3) of Section 10 of Act of 1976, requires only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under sub-section (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.
24. 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 courts below were right in holding that the plaintiffs are entitled to get the benefit of Section 3 of the Repeal Act.
25. In view of the above consideration, the substantial questions of law No.1 is answered holding that the courts below have not taken away effect of vesting of excess land under Section 10 (3) of the Act of 1976 since the defendants failed to prove due taking of possession of the disputed land on 4.3.1994, as considered above with reference the U.P. Urban Land Ceiling (Taking of Possession Payment of Amount and Allied Matters) Directions, 1983.
26. The second substantial question of law is answered holding that the memo of possession prepared was not in accordance with Form ULC -I and ULC -II of the above Directions, 1983.
27. The third substantial question of is answered holding that mere vesting of the land under Section 10 (3) of the Act does not amounts to de-facto possession over the land and since the defendants failed to prove surrender and delivery of possession of land to them by the plaintiffs or their father, the courts below have rightly decreed the suit of the plaintiffs. The defendants failed to prove their possession over property in dispute as per law.
28. In view of the above answers to the substantial questions of law framed in this appeal, this second appeal is dismissed with costs.
Order Date :- 12.04.2022 Ruchi