Allahabad High Court
S.K. Associates vs State Of U.P. And 2 Others on 25 January, 2023
Bench: Surya Prakash Kesarwani, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 03 Case :- WRIT - C No. - 19391 of 2022 Petitioner :- S.K. Associates Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rahul Agarwal Counsel for Respondent :- C.S.C.,Dharmendra Singh Chauhan Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Jayant Banerji,J.
(Per: Surya Prakash Kesarwani, J.)
1. Heard Sri Shashinandan, learned Senior Advocate assisted by Sri Rahul Agarwal, learned counsel for the petitioner, Sri Ashish Kumar Nagvanshi, learned Standing Counsel for the State-respondents and Ashok Mehta, learned Senior Advocate assisted by Sri Dharmendra Singh Chauhan, learned counsel for the respondent No.4.
2. This writ petition has been filed praying for the following relief:
"(A) Issue a writ, order or direction in the nature of certiorarı quashing the entire proceedings under the Urban Land (Ceiling and Regulation), Act drawn against the Tara Chand in Case No.1820/122/82 State of UP. Versus Tara Chand in respect of land of Gata No.825 area 2363.47 sq.m. situated in village Bihar Man Nagla, District Bareilly as having abated in accordance with the provisions of the The Urban Land (Ceiling and Regulation) Repeal Act, 1999.
(A) Issue a writ, order or direction in the nature of mandamus directing commanding the respondents not to dispossess the petitioner from land of Gata No.825 area 2363.47 sq.m. situated in village Bihar Man Nagla, District Bareilly.
(C) Issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to correct the revenue records by recording the name of petitioner on land of Gata No.825 area 2363.47 sq.m. situated in village Bihar Man Nagla, District Bareilly."
3. Briefly stated facts of the present case are that Thakur Das, Tara Chand and Tula Ram were the recorded tenure-holders of certain khasra plots including khasra plot No.825 as per copy of khatauni available in the original record of Ceiling Case No.1339/61/82 produced before the court by the respondents. A notice dated 01.01.1983 under Section 8 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as ''the Act, 1976') was issued to the aforesaid Thakur Das, who filed his objection on 02.02.1983 being Case No.1339/61/82 (State vs. Thakur Das). After considering objection an order under Section 8(4) of the Act, 1976 was passed on 27.03.1984 declaring certain land as surplus which included 2363.47 square meters surplus land of khasra plot No.825. Thereafter, a notice under Section 9 of the Act, 1976 was sent to the aforesaid Thakur Das through registered post which was served upon him. Notification under Section 10(1) of the Act, 1976 was issued on 28.08.1985, which was published in the Gazette on 28.02.1986. After publication of the notice under Section 10(1) of the Act, 1976, a notification dated 11.06.1986 under Section 10(3) of the Act, 1976 was sent which was published on 13.09.1986. Notice under Section 10(5) of the Act, 1976 was sent to the recorded tenure-holder on 28.11.1989. According to the respondents, the possession was taken on 16.11.1990. Since none had filed any objection against the possession, therefore, the name of the State Government was recorded in the khataunis over the surplus land free from all encumbrances. On 16.11.1990, the possession was transferred to the respondent No.4, i.e. the Bareilly Development Authority. It is also relevant to mention that on perusal of the original records of Case No.1820/122/82 (State vs. deceased Tara Chand) (Page-16/1), it appears from the noting/ reports dated 25.04.1995 that Thakur Das had also filed some appeal which was pending. However, further particulars of appeal or decision are not available in the records as produced by the State-respondents. This is how there was some link between the ceiling case against the aforesaid Thakur Das and co-tenure-holder Tara Chand.
4. That similarly against the co-tenure-holder Tara Chand, a Ceiling Case No.1820/122/82 (State vs. Tara Chand) was registered. A notice under Section 8 of the Act, 1976 was issued to the aforesaid Tara Chand on 06.02.1984, who had not filed his objection and as such an order dated 04.04.1985 under Section 8(4) of the Act, 1976 declaring 6932.23 square meters as surplus land, was passed which included portion of khasra plot No.825 in question. Notification under Section 10(1) of the Act was issued on 25.10.1989, which was published on 17.03.1990. Notification under Section 10(3) of the Act was issued on 27.06.1990, which was published on 17.11.1990. Notice under Section 10(5) of the Act, 1976 was issued on 25.10.1991 to the aforesaid Tara Chand and thereafter on 19.06.1993 to the heirs of Tara Chand which was served upon the wife of Late Tara Chand, namely Smt. Bilaso, which fact is evident from the acknowledgement of Bilaso Devi on the back side of the notice available in the original records of of Case No.1820/122/82 (State vs. Tara Chand) at Page 14/6. One of the heirs of Tara Chand, namely Ram Das filed an objection dated 08.10.1993 stating that his brother had received the notice with whom he had not good terms and, therefore, he was not having knowledge of orders dated 04.04.1985 and 28.01.1989. By order dated 26.03.1996, the objection of the aforesaid Ram Das and Amar Singh, son of late Tara Chand and Smt. Bilaso, wife of Tara Chand were rejected by the Competent Authority, Urban Land Ceiling, Bareilly. The name of the State was mutated in the revenue records on 02.02.1994 in the khatauni for the Fasli 1400-1405, in respect of certain plots including plot No.825M, measuring 2363.47 square meters. It further appears that some appeal filed by heirs of Tara Chand against the order under Section 10(8) of the Act, 1976 was dismissed by the court of District Judge, Bareilly on 13.07.1998.
5. In paragraph-28 of the writ petition, the petitioner has stated that legal heirs of Tara Chand being Jagdish Prasad, Ram Das and Amar Singh sons of Tara Chand as well as Bhagwan Das and Sukhlal, sons of Tula Ram sold the total land of khasra plot No.825 measuring 3 bighas and 1 biswas to the petitioner by a registered sale deed dated 20.03.2003, through their power of attorney holders. From the alleged sale deed dated 20.03.2003, it appears that power of attorney given by Jagdish to one Jasveer Singh, was registered on 17.07.2002. Power of attorney given by Bhagwan Das and Sukhlal sons of Tula Ram and Sundar Devi wife of Tula Ram, was registered on 23.07.2002 in favour of the aforesaid Jasveer Singh. Another power of attorney was given by Ram Das and Amar Singh sons of Tara Chand to one Satvir Singh, which was registered on 02.09.2002.
6. In paragraph-26 of the counter affidavit dated 16.01.2023, the respondent Nos.1, 2 and 3 have stated that "on 05.09.2002 Jagdish Prasad has cancelled the power of attorney dated 17.07.2002 executed in favour of Jasveer Singh." In paragraph-26 of the rejoinder affidavit, the petitioners have admitted this fact. Thus, the sale deed dated 20.03.2003 executed by Jasveer Singh, power of attorney holder was without authority as it was executed subsequent to cancellation of power of attorney. However, on the basis of the aforesaid sale deed, the petitioner got his name mutated on 22.05.2003 against which a recall application was filed by Jagdish Prasad on 11.07.2007 being Case No.729/732/7 (S.K. Associates vs. Jasveer Singh), which was allowed and the mutation order dated 22.05.2003 was cancelled. It remains undisputed that over the surplus land of khasra plot No.825, the name of the State is continuing in the khataunis from about three decades. As per annexure CA-3 to the short counter affidavit, the possession over the surplus land of khasra plot No.825, measuring 7714.06 square meters was taken under Section 10(6) of the Act, 1976.
7. Thus, from the records it is evident that the petitioner claims to be a subsequent purchaser of the surplus declared land under the Act, 1976, by way of a sale deed dated 20.03.2003 which was executed by the alleged power of attorney holder in favour of the petitioner after the power of attorney was cancelled on 05.09.2002.
8. From the facts as aforenoted, it is evident that the land in question vested in the State and after taking possession thereof, it was transferred to the Bareilly Development Authority. As per photographs filed along with the short counter affidavit on behalf of respondent No.4 (Bareilly Development Authority, Bareilly) and also as per averments made in paragraph-15 of the said short counter affidavit, the land in question is in actual physical possession of the Bareilly Development Authority. The original tenure-holders or their successors have neither objected at any point of time during last about three decades nor they have filed the present writ petition. The present writ petition has been filed by a so-called purchaser of the disputed land, who allegedly purchased it by a sale deed dated 20.03.2003 through an alleged power of attorney holder whose power of attorney was cancelled on 05.09.2002. The aforesaid alleged sale deed has been got executed after vesting of the disputed land in the State about two decades ago and the name of the State stood recorded in the revenue records. There is nothing on record to show that the petitioners have any authority of law to possess the disputed land. No evidence has been filed by the petitioners to establish that they are in possession of the disputed land. On the contrary, the short counter affidavit filed by the respondent No.4 and photograph annexed therewith indicates physical possession of the respondent No.4 over the land in question and the disputed land is enclosed by a boundary-wall constructed by the respondent No.4.
9. Considering the question of proving possession for the purposes of Section 3 of the Repeal Act, 1999, in a recent judgment in the case of State of Tamil Nadu and others vs. M.S. Viswanathan and others, (2021) 10 SCC 614 (Paras-16 and 24); Hon'ble Supreme Court has held as under:
"16. In essence, "taking over possession" forms the lifeline of Section 3 of the Repeal Act and a person seeking the benefit of the Repeal Act for restoration of the land should plead and prove that possession was not taken over.
24. Unfortunately, the High Court did not even look into the letter dated 11-11-1980 nor did the High Court examine the records of the Department. Both the Single Judge as well as the Division Bench proceeded on the premise that the land was lying vacant with a compound wall and that therefore, the claim of the landowner to be in possession must be correct. There can hardly be any such presumption. The existence of the compound wall enclosing even the land that had already been sold by the land owner to the Trust, is admitted by the land owner herself in her letter dated 11-11-1980. Therefore, the High Court committed a grave error in granting the benefit of Section 3(2) of the Repeal Act to the respondents herein."
10. In the case of Sulochana Chandrakant Galande vs. Pune Municipal Transport and others, (2010) 8 SCC 467 (para-36), Hon'ble Supreme Court held that in case where the possession has been taken, repeal of the Act, 1976 would not confer any benefit on the owner of the land. In the present set of facts, it is undisputed that the land in question was allegedly purchased by the petitioners by way of alleged sale deed dated 20.03.2003, i.e. much subsequent to conclusion of proceedings under the Act, 1976 including the proceeding under Section 10(5). Thus, the petitioner is a third party purchaser who has no locus standi to claim any benefit by alleging that possession was not taken.
11. Since as per own case set up by the petitioner, he has allegedly purchased the land in question after statutorily vesting of the land in the State Government under Section 10 of the Act, 1976, therefore, a statutory bar on transfer stood created by sub-Section (4) of Section 10. Hence, in any case, the alleged transfer of property made in contravention of the statutory mandate, is null and void. The correctness of taking over possession of the surplus declared vacant land by the competent authority or his authorised officer, cannot be examined in writ jurisdiction and no relief can be granted by the High Court at the instance of the petitioner herein, who allegedly has purchased the land after vesting of the land with the State Government. Thus, the petitioner has even no locus standi either to challenge possession or to file the present writ petition. The view being taken by us is supported by the law laid down by Hon'ble Supreme Court in the case of State of U.P. and others vs. Adarsh Seva Sahkari Samiti Limited, (2016) 12 SCC 493 (paras-4 to 8), as under:
"4. We have examined this aspect. Having regard to the undisputed fact that the respondent has purchased the property from the declarant which is vested with the State Government under Section 10(5) of the Act in terms of of Section 10(3) Notification, therefore, the transfer of property in favour of the respondent, who is claiming its interest in the said property is void ab initio in law. On this ground alone, the order passed by the High cannot be allowed to sustain.
5. It is also brought to our notice by the learned senior counsel Mr. Misra that after the proceedings Under Sections 10(3) and 10(5), notice and the alleged taking over possession of the land in question, the subsequent event has taken place, namely, the said property has been transferred to the Lucknow Development Authority by the State Government and the development authority has laid a park for public use. On this, learned senior counsel for the respondent submits that the said event has taken place during the pendency of the proceedings before the High Court. Though it may be the fact, subsequently, after the transfer of the property in favour of the development authority, the authority has developed a park is an undisputed fact. This is also a very relevant aspect of the matter for this Court to annul the impugned judgment/order passed by the High Court.
6. In our opinion, the respondent herein has no locus standi to challenge the inaction on the part of the appellants viz. not taking possession legally strictly complying with the statutory provisions under Section 10(5) of the Act and taking over possession as provided under Section 10(6) of the Act. At this juncture, this aspect need not be examined by this Court at the instance of the respondent.
7. For the reasons stated supra, the impugned order passed by the High Court to the extent it granted relief to the respondent herein is liable to be set aside and is hereby set aside accordingly. The appeals are allowed accordingly. There shall be no order as to costs.
8. Having allowed the appeals, considering the respondent's submission that the possession of the land was taken over under Section 10(6) of the Act, it is open for the respondent to prefer a claim under Section 11 of the Act for compensation by filing an appropriate application under the provisions of the Act before the appropriate authority, which claim shall be examined independently by the competent authority and pass appropriate orders in accordance with law expeditiously but not later than six months from the date of receipt of such application."
(Emphasis supplied by us)
12. The aforesaid two judges bench judgment of Hon'ble Supreme Court was affirmed by a three judges bench judgment of Hon'ble Supreme Court in the case of State of Uttar Pradesh and others vs. Surendra Pratap and others, (2016) 12 SCC 497 (paras-8 and 9), as under:
"8. Moreover, in State of U.P. and others vs. Adarsh Seva Sahkari Samiti Limited, (2016) 12 SCC 493, this Court has observed that after the vesting of the surplus land with the State Government u/s 10(5) of the Act, if any transfer of the property in question is effected, such transfer would be void ab initio and the transferee would not be entitled to challenge the alleged inaction on part of the State Government or the Competent Authority in not taking possession in compliance with the provisions u/s 10(5) of the Act.
9. In the aforesaid circumstances, the view taken by the High Court in the instant case is completely unsustainable. This appeal is, therefore, allowed and the Writ Petition preferred by the respondent Nos.1 and 2 herein stands dismissed with costs."
(Emphasis supplied by us)
13. 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)
14. 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)
15. Apart from above, the power under Article 226 is a discretionary power. A writ can be issued only in case of a grave miscarriage of justice or where there has been a flagrant violation of law. The power being discretionary, the court has to balance competing interests, keeping in mind that the interests of justice and public interest coalesce generally. A court of equity, when exercising its equitable jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity. A petitioner whose claim is not founded on valid grounds, is not entitled to claim equity. A person who claims equity must come before the court with clean hands as equities have to be properly worked out between parties to ensure that no one is allowed to have their pound of flesh vis-a-vis the others unjustly.
16. In the present set of facts, we have already noted that the disputed land vested in the State and the alleged sale deed is totally null and void in view of Section 10(4) of the Act, 1976, apart from the fact that the power of attorney was withdrawn much before the execution of the alleged sale deed. The petitioner being an alleged purchaser, has even no locus standi. Thus, on the present set of facts, we also find that it is not a fit case to exercise equitable discretionary jurisdiction.
17. Thus, we reach to the following conclusions:
(a) The petitioner claims to be a purchaser of the surplus declared land under the Act, 1976, by way of a sale deed dated 20.03.2003 which was executed by the alleged power of attorney holder in favour of the petitioner after the power of attorney was cancelled on 05.09.2002.
(b) The land in question vested in the State. The State took its possession and transferred it to the Bareilly Development Authority. As per photographs filed along with the short counter affidavit on behalf of respondent No.4 (Bareilly Development Authority, Bareilly) and also as per averments made in paragraph-15 of the said short counter affidavit, the land in question is in actual physical possession of the Bareilly Development Authority.
(c) The original tenure-holders or their successors have neither objected at any point of time during last about three decades to the vesting of the land in question nor striking off the names of original tenure holders and mutation of name of the State/ respondent No.4 in revenue records, i.e. Khatauni etc., nor they have filed the present writ petition. The present writ petition has been filed by a so-called purchaser of the disputed land, i.e. the petitioner, who allegedly purchased it by a sale deed dated 20.03.2003 through an alleged power of attorney holder whose power of attorney was cancelled on 05.09.2002, i.e. much prior to the execution of the aforesaid sale deed.
(d) The aforesaid alleged sale deed has been got executed after vesting of the disputed land in the State about two decades ago and the name of the State stood recorded in the revenue records. There is nothing on record to show that the petitioners have any authority of law to possess the disputed land. No evidence has been filed by the petitioners to establish that they are in possession of the disputed land.
(e) In essence, "taking over possession" forms the lifeline of Section 3 of the Repeal Act and a person seeking the benefit of the Repeal Act for restoration of the land should plead and prove that possession was not taken over.
(f) Where the possession has been taken, repeal of the Act, 1976 would not confer any benefit on the owner of the land. In the present set of facts, it is undisputed that the land in question was allegedly purchased by the petitioners by way of alleged sale deed dated 20.03.2003, i.e. much subsequent to conclusion of proceedings under the Act, 1976 including the proceeding under Section 10(5). Thus, the petitioner is a third party purchaser who has no locus standi to claim any benefit by alleging that possession was not taken.
(g) After statutorily vesting of the land in the State Government under Section 10 of the Act, 1976, a statutory bar on transfer stood created by sub-Section (4) of Section 10. Therefore, in any case, the alleged transfer of property made in contravention of the statutory mandate, is null and void. Thus, claim of interest by the petitioner in the disputed land is void ab initio in law.
(h) Even 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). 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 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.
(i) 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. However in its discretion, this court may decide the question of possession if there are sufficient evidences to establish that possession was not taken by the State Government and the land owner is continuing in possession.
(j) In view of the facts briefly noted in paras 3 to 6 above, the writ petition is also not even entertainable on the ground of laches.
(k) In the present set of facts, we have already noted that the disputed land vested in the State and the alleged sale deed is totally null and void in view of Section 10(4) of the Act, 1976, apart from the fact that the power of attorney was withdrawn much before the execution of the alleged sale deed. The petitioner being an alleged purchaser, has even no locus standi. Thus, on the present set of facts, we also find that it is not a fit case to exercise equitable discretionary jurisdiction.
18. For all the reasons aforestated and also in view of the law laid down by Hon'ble Supreme Court in M.S. Viswanathan and others (supra), Sulochana Chandrakant Galande (supra), Adarsh Seva Sahkari Samiti Limited (supra), Surendra Pratap and others (supra), Bhaskar Jyoti Sharma and others (supra) and also the law laid down by a coordinate bench of this court in the case of Shiv Ram Singh (supra), we do not find any merit in this writ petition, apart from the fact that the petitioner has no locus standi and the writ petition is also hit by laches. Consequently, the writ petition is dismissed.
Order Date :- 25.1.2023 NLY