Allahabad High Court
Mohd. Afsar Ali @ Pappu And Others vs State Of U.P. And Others on 15 October, 2019
Bench: Ramesh Sinha, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 1 Case :- WRIT - C No. - 52446 of 2008 Petitioner :- Mohd. Afsar Ali @ Pappu And Others Respondent :- State of U.P. and Others Counsel for Petitioner :- B.C. Rai, Dinesh Rai Counsel for Respondent :- C.S.C., Anil Tiwari, Bhupeshwar Dayal Hon'ble Ramesh Sinha,J.
Hon'ble Ajit Kumar,J.
1. Heard Shri B.C. Rai, learned counsel for petitioners, Shri Bhupeshwar Dayal, learned counsel appearing for respondent No. 5 and learned Standing Counsel appearing for State-respondents.
2. By means of this petition under Article 226 of the Constitution of India, the petitioners have prayed for a writ of mandamus commanding the respondent No. 3 to correct the revenue records by mutating the name of petitioners in respect of Plot No. 399 (Miljumla), area 5335.16 Sq. Meters situate in village - Ghosipur, Pergana, Tehsil and District Meerut (hereinafter referred to as land in question) and the ground is that petitioners are entitled to the benefit of the U.P. Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short Repeal Act, 1999).
3. Briefly stated facts of the case are that in a proceeding under the U.P. Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "the Act, 1976") the land in question was declared surplus under Section 8 (4) of the Act, 1976 vide order dated 10.08.1981.
4. It is, however, claimed that original tenure holder Shri Nasiruddin, the predecessor-in-interest of the petitioners was never served with any notice under Sections 8 and 10 (5) of the Act, 1976 and he was not aware of any such ceiling proceedings instituted against him and he continued to cultivate the land. Later on, Nasiruddin died and the petitioners became Bbumidhar of the agricultural land and continued to cultivate the same on the date when the Repeal Act, 1999 came into force.
5. It is, however, submitted that in spite of the Repeal Act, 1999 coming into force and ceiling proceedings having consequently come to be abated in respect of the petitioners' land as they continued to be in possession on the date of the notification of the Repeal Act, 1999 but the name of the State has continued as if the land in question was declared as a surplus land vested with the State.
6. Claiming the benefit of the Repeal Act, 1999, it has been argued on behalf of the petitioners that at no point of time any notice under Section 10 (5) of the Ceiling Act, 1976 was ever served upon the predecessor-in-interest of the petitioners nor, was at any point of time forceful possession of the land in question taken with issuance of the notice under Section 10 (6) of the Act, 1976. Accordingly, the counsel for petitioners has relied upon the Apex Court's judgment in the case of State of U.P. Vs. Hari Ram, 2013 (4) SCC 280 wherein it has been held that by virtue of sub-section 2(a) of section - 3 of the Repeal Act, 1999, the proceeding under the Ceiling Act, 1976 would stand abated if de facto possession of State over the surplus land is not there.
7. Appreciating the arguments raised by the learned counsel for petitioners, we had summoned the original record of the ceiling proceeding relating to the land in question, which have been produced today.
8. From the original record that we have examined, we find that though there is a notice dated 18.09.1986 available on record in form of carbon copy on a rice paper, but there is no report regarding the service of the said notice either by acceptance or by refusal. We further find that there is an envelop available on record purportedly containing notice under Section 10(5) and which has been received back with a note that nobody was found in the name of the person in the village to whom the notice was sent. There is a possession memo available on record which bears the name of two witnesses of the refusal of delivering of possession, but there is no reference of the persons who refused the delivery of possession. Further, there is no detail of the person nor seal of the authority that had taken the alleged delivery of possession forcefully on 13th of February, 1992. The person who has endorsed the name of witnesses though has put his signatures but there is no detail of the such person putting the endorsement nor, do we find any seal of such person that would reveal the identity of Revenue Authority if any. Thus, from the perusal of the original record, it clearly transpires that the authorities have proceeded to treat the land to have vested with the State once notification had been issued under Section 10 (3) of the Act, 1976 and did not care even to ensure that the notice under Section 10 (5) of the Act is somehow served upon the original tenure holder. The possession memo that is available on record, seems to have been prepared not on the sport but in the office, otherwise the name of person who had refused to deliver the possession on the spot would have come in the possession memo and the details of the person endorsing the name of the witnesses on the spot would have also been detailed. Even the authority that is alleged to have taken the possession by way of forceful possession, its details have not been given. The name of the persons neither mentioned nor, does the possession memo bear any seal of such person to acknowledge the delivery and to hold the document of possession to be genuine and valid one.
8. While it is true that a land which is vast in area is not a moveable item which could be delivered by a person and taken by an authority but physical delivery of possession means and would include only that the authority visits the spot and refers to the tenure holder available on the spot and then, in presence of independent witnesses/public witnesses he refused to deliver the possession and the authority takes the possession by executing a note to that effect. For a document of possession to be worth admission it is necessary that it must bear all these details. The authority which acknowledges and endorses the signatures of the witnesses should also make a note on the possession memo to make out a case of forceful possession in spite of refusal by the tenure holder. So he must not only make an endorsement to that effect but also his name and seal should come up on that paper. In the absence of a tenure holder refusing to deliver the possession, the possession memo becomes a sacrosanct document, and then unless it is duly executed on the spot, it cannot be relied upon as an acknowledgement of the delivery of actual physical possession of the land. In the case in hand we do not find these documents worth evidenciary value as a proof of the factum of the delivery of the possession. If the two documents under Section 10(5) and the alleged possession memo under Section 10(6) are taken together and examined, it clearly transpires that the first notice was never served upon the original tenure holder and therefore, it creates certain doubts about his knowledge of being asked to give physical possession. Moreover, the notice dated 08.09.1986 had come back in an undelivered cover with such indorsement dated 3rd of October, 1986 and yet the alleged actual physical possession was shown as late as on 13th February, 1992. What prompted the authorities not to take the possession for such a long time, say six years, remains unexplained by them in the affidavit. From the perusal of the records also, we do not find any correspondence available between tenure holder and the ceiling authorities.
9. Besides above, we also do not find any reference of notice under Section 10 (6) pursuant to which the possession memo has been executed, nor do we find any such notice under Section 10(6) available on record so that it can be inferred that it might have been sent but came back unserved.
10. It is sought to be urged on behalf of the Meerut Development Authority that the actual physical possession has been handed over to the Meerut Development Authority by the Ceiling Authority on 13th February, 1992 itself and therefore, it cannot be said that the petitioners are anymore in possession.
11. From the perusal of the possession memo which is available on record, which bears the signatures of the Ceiling Authority and that of the official of the Meerut Development Authority, there is a note that there are unauthorized constructions standing on the spot over the land in question. But there is no such note in the possession memo which is of the same date, by virtue of which it is alleged that forceful possession was taken under Section 10 (6) from the original tenure holder. There is no mention in the pleadings that have come up to be raised both by the State Authorities as well as the Development Authority that any forceful possession of the constructed building was taken on the spot. When possession of a surplus land declared under the Ceiling Act is being taken and transferred, the question that becomes of a paramount importance is whether there existed any constructed building and if so why the owner of that building was not served with a notice and why at the time of the delivery of possession his endorsement was not taken or at least refusal is not recorded. It appears that both the possession memos which are of the same date were prepared purposely only on paper to demonstrate that there was a delivery of possession but no actual physical possession was ever taken of the land in question.
12. Vide para - 33 to 39 the Apex Court in the case of State of U.P. Vs. Hari Ram has held thus:-
"33. 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.
34. 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'.
35. Above reasoning is in consistence with the Directions 1983 which has been issued by the State Government in exercise of powers conferred under Section 35 of the Act. Directions clearly indicate that the procedure for taking possession of the vacant land in excess of the prescribed ceiling limit, which reads as under:
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 S. No. Serial No. of Register of Receipt Sl.No. of Register of taking possession Case Number Date of Notification u/s 10 (3) Land to be acquired village Mohali Date of taking over possession 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 ......................................
...................................."
36. 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 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.
37. The scope of Act 33 of 1976 came up for consideration before this Court on few occasions, reference may be made to certain judgments, even though there has been no elaborate discussion of the provision of the Act and its impact on the Repeal Act. Reference may be made to Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and Others (2000) 6 SCC 325, Ghasitey Lal Sahu and Another v. Competent Authority, Under the Urban (Ceiling and Regulation Act, 1976), U.P. and Another (2004) 13 SCC 452, Mukarram Ali Khan v. State of Uttar Pradesh and Others (2007) 11 SCC 90 and Vinayak Kashinath Shilkar v. Deputy Collector and Competent Authority and Others (2012) 4 SCC 718.
Effect of the Repeal Act
38. 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.
39. 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."
13. Applying the above exposition of law to the facts of the case as discussed herein above, we find merit in the argument advanced by the learned counsel for the petitioners that actual physical possession of the land was with the tenure holder on the date of coming into force of the Repeal Act, 1999 and therefore, the petitioners are entitled to the benefit of the Ceiling Proceedings in respect of the land in question which stood abated.
14. Accordingly, the writ petition succeeds and is allowed.
15. The respondents are restrained from interfering with the possession of the petitioners over the land in question and are further directed to correct the relevant Revenue Records of the land land in question in favour of the petitioners.
(Ajit Kumar, J.) (Ramesh Sinha, J.)
Order Date :- 15.10.2019
LBY