Allahabad High Court
Lalla And Others vs State Of U.P. Thru Secy. And Others on 26 September, 2014
Bench: Krishna Murari, Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
AFR
Case :- WRIT - C No. - 16603 of 2013
Petitioner :- Lalla And Others
Respondent :- State Of U.P. Thru Secy. And Others
Counsel for Petitioner :- Raj Karan Yadav
Counsel for Respondent :- C.S.C.
And
Case :- WRIT - C No. - 18544 of 2013
Petitioner :- Lal Chandra
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Rakesh Prasad,D.S. Yadav
Counsel for Respondent :- C.S.C.
And
Case :- WRIT - C No. - 16965 of 2013
Petitioner :- Phool Chand
Respondent :- State Of U.P. Thru Secy. And Others
Counsel for Petitioner :- Adeel Ahmad Khan,Pooja Srivastava,Sanjay Mani Tripathi
Counsel for Respondent :- C.S.C.
And
Case :- WRIT - C No. - 35668 of 2013
Petitioner :- Lal Bahadur And 2 Others
Respondent :- State Of U.P. Thru Secy. And 2 Others
Counsel for Petitioner :- Raj Karan Yadav
Counsel for Respondent :- C.S.C.
And
Case :- WRIT - C No. - 71267 of 2013
Petitioner :- Manas Kumar And 6 Others
Respondent :- State Of U.P. Thru Secy. And 2 Others
Counsel for Petitioner :- Raj Karan Yadav
Counsel for Respondent :- C.S.C.
And
Case :- WRIT - C No. - 19813 of 2014
Petitioner :- Abu Talib
Respondent :- State Of U.P.And 3 Others
Counsel for Petitioner :- Smt.Rekha Pundir,Ramesh Pundir
Counsel for Respondent :- C.S.C.,Rajesh Kumar Shukla,S.P.Singh
And
Case :- WRIT - C No. - 21498 of 2014
Petitioner :- Smt. Dashwanti Devi And Another
Respondent :- State Of U.P. Thru Secy. And 2 Others
Counsel for Petitioner :- Raj Karan Yadav
Counsel for Respondent :- C.S.C.
And
Case :- WRIT - C No. - 21499 of 2014
Petitioner :- Ram Murat And 4 Others
Respondent :- State Of U.P. Thru Secy. And 2 Others
Counsel for Petitioner :- Raj Karan Yadav
Counsel for Respondent :- C.S.C.
And
Case :- WRIT - C No. - 25992 of 2014
Petitioner :- Ram Awadh
Respondent :- State Of U.P. Thru Secy. And 2 Others
Counsel for Petitioner :- Raj Karan Yadav
Counsel for Respondent :- C.S.C.
And
Case :- WRIT - C No. - 9938 of 2013
Petitioner :- Bachcha Lal And Others
Respondent :- State Of U.P. Thru Secy. And Others
Counsel for Petitioner :- Raj Karan Yadav
Counsel for Respondent :- C.S.C.
Hon'ble Krishna Murari,J.
Hon'ble Ashwani Kumar Mishra,J.
1.The Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'Act of 1976') was repealed by section 2 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as 'Repeal Act of 1999') and was adopted in the State of U.P. w.e.f. 18.3.1999. The Repeal Act 1999 contains a savings clause in section 3, which reads as under:-
"Savings
3. (1) The repeal of the principal Act shall not affect-
(a) the vesting of any vacant land under sub-section (3) of section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;
(b) the validity of any order granting exemption under sub-section (1) of section 20 or any action taken thereunder, 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 (1) 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 authorised 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."
2.Dispute arose with regard to interpretation and true import of the savings clause. The question has been answered in a series of judgment of the Apex Court starting from Pt. Mohan Swaroop Shrotiya Public Charitable Trust v. State of U.P. [(2000) 6 SCC 325], Ghasitey Lal Sahu v. Competent Authority [(2004) 13 SCC 452], Mukarram Ali Khan v. State of U.P. [(2007) 11 SCC 90], Vinayak Kashinath Shilkar v. Collector and Competent Authority [(2012) 4 SCC 718] and lastly in State of U.P. v. Hari Ram [(2013) 4 SCC 280], wherein the provisions of the Principal Act and also the Repeal Act were examined and it was held as under in para 41 & 42 of the judgment:-
"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."
3.The petitioners in the first writ petition no.16603 of 2013 (Lalla and others v. State of U.P. and others) had previously filed a writ petition no.33151 of 2002 seeking benefit of the Repeal Act 1999. Their writ petition was allowed on 2.5.2005 in terms of the order passed in Chabi Nath v. State of U.P. [2005 (59) ALR 413]. The order dated 2.5.2005 in writ petition no.33151 of 2002 reads as under:-
"Hon'ble A.K. Yog, J.
Hon'ble B.B. Agarwal, J.
Learned counsels for the parties at the bar state that present writ petition is squarely covered by the ratio discerning from the judgment and order dated 17.3.2005 passed by the this Bench in writ petition no.6354 of 2003 - Chabi Nati S/o Sarju Prasad Versus State of U.P. and others.
Present petition is, therefore, decided on the same terms and conditions as passed in aforesaid judgment.
It is, however, made clear that possession or interest of any third person/authority who is not party to the writ petition, if any, shall not be prejudiced.
Writ petition is allowed with the above observation.
No order as to costs.
Dated: 02.05.2005 SS"
This Court had examined the scope of savings clause in Chabi Nath (supra) and following proposition was laid down in para 15 to 21 of the judgment, which are reproduced:-
"15. From the expressions used in section 10(5) and 10(6) of the Act, it is clear that mere vesting of title with respect to land declared surplus under the Act (without) de-facto possession being taken is of no consequence.
16. Consequently, even if an entry is made revenue records,in favour of State, it is inconsequential so far as the applicability of Section 3 of Repealing Act is concerned.
17. The view taken by us and the interpretation of section 3 of the repealing Act ( as noted above) is fully supported in view of section 11 of the Act.
18. Section 11 refers to section 10 (3) of the Act. It has no reference to section 10(5) of the Act. It means that compensation becomes payable, as and when land is 'deemed vested' in the State Government. For claiming compensation, it is, therefore, not necessary that actual physical possession is taken by the Competent authority under section 10(5) and/or 10(6) of the Act. The aforesaid position is clear from the reading of section 11(10) of the Act.
19. Relevant extract of the judgement dated May 9,2001 in writ petition no.54722 of 1999-states:-
"This petition relates to the Urban Land (Ceiling and Regulation) Act, 1976 as repealed in 1999. In Pt. Madan Swarup Shrotiya, Public Charitable Trust Vs. State of U.P. and others J.T. 2000(3) S.C./391 it has been held by the Supreme Court that if possession has been taken over by the State Government then the proceedings under the Act will not abate but if the possession has not been taken over the proceedings shall abate. We make it clear that the word possession means actual physical possession. Hence if actual physical possession has been taken over the proceedings shall not abate otherwise they will abate.
The petition is disposed of accordingly."
20. In view of the above even though there has been entry in favour of the State in revenue records without taking action to take possession under section 10(5) and 10(6) (i.e. actual physical possession) the actual tenure holder can not be deprived of the benefit of the Repeal Act.
21. In that view of the matter, the writ petition stands allowed. A writ of mandamus is issued against the respondents not to interfere with the possession of the petitioner over the land declared surplus under the Act by the Competent Authority vide order dated 27.1.1981 (Annexure '2') and further to correct revenue records on necessary steps being taken by the petitioner in that respect."
4.Petitioner Lalla and others complain that despite adjudication by this Court of petitioners' right over the land, vide order dated 2.5.2005, the name of the petitioners have not been restored in the revenue records and the cloud over petitioners' title continues to exist, despite the ceiling proceedings having abated pursuant to its repeal and its adjudication by this Court.
5.Similarly, the petitioners in other writ petitions state that though the land of the petitioners was declared as surplus under the Urban Land (Ceiling and Regulation) Act, 1976 but actual physical possession has not been taken and thus they would be entitled to the benefit of the Urban Land (Ceiling and Regulation) Repeal Act, 1999.
6.Specific case of the petitioners is that actual physical possession had not been taken and mere symbolic possession would not be sufficient as the petitioners continue in possession of the plot in question.
7.In all the writ petitions, which are being decided by this common judgment, we have scanned the material brought on record. We find that there is no material brought on record to demonstrate that the State has been handed over peaceful possession by the tenure-holder pursuant to notice under section 10(5), nor there is any material to demonstrate that any notice under section 10(6) of the Act of 1976 was served followed with forcible physical possession taken by the State. There is not even a whisper in respect of any notice having been issued under section 10(6) of the Act. The facts clearly indicates that only dejure possession has been taken by the State, not de facto possession, before coming into force of the Repeal Act. The petitioners, therefore, are entitled to the benefit of section 3 of the Repeal Act 1999 and a declaration is, therefore, issued to the effect that petitioners' possession over the land in dispute is not liable to be interfered with by the state or its agencies including local authorities/development authorities and the entry of names of the tenure-holders is liable to be restored after expunging the entry of State from the records. A direction is also issued in writ petition no.16603 of 2013 (Lalla and others vs. State of U.P.) that the names of the tenure holders as existed prior to recording of the entry of state, or the heirs/transferees be restored forthwith.
8.This Court is flooded with writ petitions filed by tenure holders or their heirs or transferees complaining that despite the law having been settled, the State Government continues to assert its right in respect of ceiling surplus land, notwithstanding abatement of ceiling proceedings pursuant to the repeal of the Act itself, since possession, as per law was never taken from them by the State. The State Government in most of such cases has referred to and relied upon government orders issued prior to the repeal of the Principal Act, whereby management of ceiling surplus land has been transferred to local authorities/ development authorities to content that on account of service of notice under section 10(3) or 10(5) of the Act, coupled with the government order, the State or its agencies have perfected right over the ceiling surplus land. In this regard, one of the government orders issued on 11.12.1996 is reproduced:-
"la[;k 2893@9&u0Hkw0@96@109 ;w0lh0@84 izs"kd] v[k.M izrki flag] izeq[k lfpo] mRrj izns'k 'kkluA lsok esa] ftykf/kdkjh] cjsyh] esjB] lgkjuiqj] nsgjknwu] vkxjk] vyhx okjk.klh] y[kuÅ] bykgkckn] xksj[kiqj] eqjknkckn] dkuiqjA vkokl vuqHkkx&6 y[kuÅ % fnukad 11 fnlEcj] 1996 fo"k; % uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ vf/kfu;e] 1976 ds vaUrxZr 'kklu esa fufgr ,oa dCts esa yh x;h Hkwfe dk fuLrkj.kA egksn;] mi;qZDr fo"k; ij eq>s ;g dgus dk funsZ'k gqvk gS fd orZeku izfdz;k vuqlkj uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ vf/kfu;e 1976 ds fofHkUu izkfo/kkuksa ds vUrxZr lhfyax ls vizHkkfor Hkwfe dks de djrs gq;s lhekf/kD; Hkwfe dh x.kuk l{ke inkf/kdkfj;ksa }kjk dh tkrh gS vkSj vkifRr;ksa ds fuLrkj.k ds i'pkr~ /kkjk&10¼3½ o 10¼5½ ds vUrxZr lhekf/kD; "wfe ds vfUre :i esa 'kklu esa fufgr gks tkus ,oa dCtk izkIr gks tkus ij mldks vkosnu@ fuLrkj.k vf/kfu;e dh /kkjk&23 ds v/khu jkT; ljdkjksa }kjk 'kklukns'k la[;k&559@mUokl&109 ;w0lh0 82] fnukad 27-2-1984 ,oa 'kklukns'k la[;k& 317@9&u0Hkw0@96&109 ;w0lh0@81] fnukad 27-2-1996 esa fofgr fo/kh izfdz;k ,oa 'krksZa ds vuqlkj fd;k tkrk gSA bl 'kklukns'k ds vuqlkj lhfyax dh Hkwfe vkoafVr djus esa fodkl izkf/kdj.kksa vkokl ,oa fodkl ifj"kn vkSj fofHkUu ljdkjh foHkkxksa@midzeksa dks vius deZpkfj;ksa ds vkokl vkoaVu esa izkFkfedrk nh tkrh gSA bl lEcU/k esa 'kklu ds laKku esa ;g ckr yk;h x;h gS fd /kkjk&10¼5½ ds vUrxZr dCts esa yh x;h dkQh Hkwfe vkoaVu gsrq vo'ks"k iM+h gS vkSj ,slh "wfe ds vkosnu esa visf{kr izxfr ugha gks ldh gS] ftlds QyLo:i ,slh Hkwfe ij voS/k dCts ,oa fuekZ.k dh lEHkkouk lnSo cuh gq;h gSA bu vo'ks"k iM+h Hkwfe ds Rofjr [email protected] ds lEcU/k esa lE;d fopkjksijkUr 'kklu esa mDr 'kklukns'kksa fnukad 27-2-1984 o 27-2-1996 rFkk vU; rRrlEcU/kh dks vkaf'kd :i ls la'kksf/kr djrs gq;s fuEu fu.kZ; fy;s gS %& ¼1½ uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ vf/kfu;e] 1976 dks izkfo/kkuksa ds vUrxZr 'kklu esa fufgr leLr lhekf/kD; "wfe utwy Hkwfe dh rgr fodkl izkf/kdj.kksa dks j[k j[kko ds fy;s gLrkUrfjr dj nh tk;sxh] ftldk mi;ksx muds }kjk vko';drkuqlkj 'kklu ds funsZ'kksa ds vuq:i lqfuf'pr fd;k tk;sxk] tks Hkwfe izkf/kdj.k mRrj izns'k vkokl ,oa fodkl ifj"kn dks viuh ;kstukvksa ds fy;s mi;qDr u gksxh] ;g Hkh fodkl izkf/kdj.kksa dh vfHkj{kk esa gh jgsxkA ¼2½ vU; ljdkjh foHkkxksa@lkoZtfud midj.kksa dks jkT; ljdkj esa fufgr ,slh lkekf/kD; Hkwfe dk vkoaVu 'kklukns'k fnukad 27-2-1984 mfYyf[kr ftykf/kdkjh dh v/;{kk esa xfBr lfefr }kjk vc lh/ks fd;k x;k tk;sxk rFkk vkoafVr Hkwfe dk fu/kkZfjr Hkw&ewY; tek gks tkus ij mldk dCtk vkoaVh foHkkx dks ftykf/kdkjh@mik/;{k fodkl izkf/kdj.k }kjk lh/ks ns fn;k tk;sxkA vr% bl dksfV esa izdj.kksa dk izLrko 'kklu dks iszf"kr fd;s tkus dh vko';drk ugh gksxhA ;g Hkh Li"V djuk gS fd ;fn vkoafV foHkkx }kjk nh?kZ vof/k rd vkoafVr Hkwfe dk ewY; lqlaxr ys[kk'kh"kZd esa tek ugha fd;k tkrk gS rks ,sls Ekkeyksa esa ftykf/kdkjh mlh "wfe dks vko';drkuqlkj fdlh nwljs bPNqd foHkkx ds i{k esa Hkh vkoafVr dj ldrs gSA ,sls vkoaVuksa ds fy;s] 'kklukns'k fnukad 27-2-1984 ds vuqlkj xfBr vkoaVu lfefr ds lnL; lfpo] lEcfU/kr l{ke izkf/kdkjh ds LFkku ij vc lEcfU/kr fodkl izkf/kdj.k ds mik/;{k@lfpo gksxs tks cSBd dk vk;kstu djk;sxsA l{ke izkf/kdkjh uxj Hkwfe lhekjksi.k] lfefr dks lnL; dh gSfl;r ls viuk izHkkoh lg;ksx nsxsA ¼3½ fodkl izkf/kdj.kksa dh tks Hkwfe gLrkUrfjr gks tk;sxh ml ij voS/k dCts o fuekZ.k gVkus dh dk;Zokgh lEcfU/kr fodkl izkf/kdj.k }kjk gh ;Fkkvko';d ftyk iz'kklu dh lgk;r ysdj dh tk;sxhA ¼4½ leLr lhekf/kD; "wfe tks fodkl izkf/kdj.k dks gLrkUrfjr gksxh] ls lEcU/kr vfHkys[kksa dks j[k&j[kko fodkl izkf/kdj.k }kjk gh fd;k tk;sxkA ¼5½ 'kklukns'k fnukad 27-2-1984 o 27-2-1996 rFkk ,rn~lEcU/kh vU; 'kklukns'kksa esa vU; O;oLFkk;sa] iwoZor jgsxhA 2- vuqjks/k gS fd d`ik;k mijksDrkuqlkj dk;Zokgh izkFkfedrk ds vk/kkj ij 'kh?kz lqfuf'pr djus dk d"V djsA Hkonh;] v[k.M izrki flag izeq[k lfpoA la[;k % 2893 ¼1½@9&u0&Hkw0&96 rn~fnukadA 1- e.Myk;qDr] vkxjk] esjB] bykgkckn] dkuiqj] y[kuÅ] okjk.klh] xksj[kiqj] cjsyh] eqjknkckn] ihM+h x<+okyA 2- vkokl vk;qDr] vkokl fodkl ifj"kn] mRrj izns'k y[kuÅA 3- funs'kd] uxj Hkwfe lhekjksi.k] mRrj izns'k] y[kuÅA 4- l{ke izkf/kdkjh] leLr uxj cLrh] mRrj izns'k dks bl vH;qfDr lfgr fd bldk O;kid izpkj o izlkj djk;k tk;A 5- mik/;{k fodkl izkf/kdj.k] cjsyh] esjB] lgkjuiqj] nsgjknwu] vkxjk] y[kuÅ vyhx<+] okjk.klh] bykgkckn] xksj[kiqj] eqjknkckn o dkuiqjA 6- eq[; uxj ,oa xzkE; fu;kstd] m0iz0] y[kuÅ 7- vkokl foHkkx ds leLr vuqHkkxA 8- xkMZ QkbyA vkKk ls] f'kf'kj dqekj ;kno vuq lfpoA"
9.The State Government by the said order made arrangement for maintenance of surplus land, which had vested in the State with respective local authorities/development authorities of the districts. Subsequent government orders from time to time had also been issued reiterating that the surplus land, which had vested in the State would stand transferred in the respective local authorities/development authorities for its maintenance and would be used in accordance with instructions issued by the State Government.
10.It appears to us that even though the principal Act has been repealed and authoritative pronouncement of the consequences, flowing from such repeal, have been laid down, yet the authorities of the State at different levels are sitting tight over the matter and the effect of repeal is not being implemented due to an erroneous interpretation adopted by the State authorities. The State Government in many of the matters have filed counter affidavits stating that by virtue of the government order, aforesaid, the possession of ceiling surplus land would be presumed to be with the local authorities/development authorities.
11.The law does not contemplate transfer of possession by government orders. It needs to be clarified that the land for the purposes of management would vest in the local authorities/development authorities only when the State came in valid possession over land, pursuant to lawful proceedings under section 10(5) or 10(6) of the Act. The local authorities/development authorities merely steps into shoes of the State government. If the State government through the Collector/District Magistrate has not taken possession over the land in question, as contemplated by law, the transfer of possession in favour of the local authorities/development authorities cannot be presumed under government order. If the possession of land has not been taken by the State, as per the procedure already determined by the Apex Court, the local authorities/development authorities cannot claim independent right over the land merely on the strength of the government order.
12.We are of the view that large number of pending writ petitions before this Court, as well as disputes pending at the level of the District Magistrate etc. can be conveniently resolved, if the State Government at its own level issues appropriate government instructions in light of the law settled by the Apex Court, providing that possession of land declared surplus cannot be taken by the local authorities/development authorities or other state agencies, merely by government orders and that only where possession of land declared surplus has been delivered to State peacefully by the tenure holders pursuant to section 10(5), or possession is forcibly taken by the State Government pursuant to notice under section 10(6), the benefit of Repeal Act of 1999 would enure to the tenure holders. The intention of legislature is clear, once the State has adopted the Repeal Act 1999 on 18.3.1999, the State must take all steps to implement its legislation and allow the consequences of repeal to the benefit of the tenure holders and the tendency to somehow or the other hold on to claim merely because notices under section 10(3) or 10(5) have been issued/served, must not be encouraged/tolerated.
13.We hope and trust that State Government would examine this matter forthwith and necessary directions/government orders would be issued, expeditiously, clarifying the situation, as indicated above, and thereby avoid unnecessary litigation before this Court and also before other forums/authorities. Learned counsels' appearing for the parties have informed, at the bar, that in District Allahabad alone, more than 5000 matters are pending at different levels. Most of such disputes can all be sorted out by issuance of appropriate instructions by government itself clarifying the true import of the Repeal Act, as per law laid down by the Apex Court.
14.The writ petitions, therefore, are allowed. We further direct the State Government to forthwith examine the matter at its own level and issues necessary guidelines clarifying the law relating to repeal, as settled by the Apex Court, in the manner, as indicated above.
15.Accordingly, all the writ petitions are allowed. No order is passed as to costs.
Order Date :- 26.9.2014 Ashok Kr.