Allahabad High Court
Rashid vs State Of U.P. And Others on 19 December, 2016
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Reserved on: 24.05.2016 Delivered on:19.12.2016 Court No. - 34 Case :- WRIT - C No. - 33045 of 2009 Petitioner :- Rashid Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.V. Goswami Counsel for Respondent :- C.S.C.,Mahesh Narain Singh Hon'ble Sudhir Agarwal,J.
Hon'ble Shamsher Bahadur Singh,J.
( Delivered by Hon'ble Sudhir Agarwal, J.)
1. Petitioner Rashid has sought a mandamus commanding respondents not to interfere in peaceful possession over the land of Khasras no.185/3 and 167 situated in village Dungrawali, Post Office Partapur, Tehsil and District Meerut.
2. Facts in brief are that petitioner's father Late Hameed, who was tenure holder of disputed land since before 1368 Fasli, submitted a return under Section 6(1) of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'Act, 1976') declaring that land held by him along with residential house is his residence. Hameed had only ½ share in land in question and remaining house belongs to his brother. A survey was conducted by competent authority and it issued a notice stating that total land in hand of Hameed was 10828.26 square metre and it proposed to declare 9328.26 square metre as surplus. Notice allegedly sent along with draft was not served on Hameed, hence he could not file any objection. Vide order dated 03.06.1981 competent authority declared 9328.26 square metre land, surplus. Actual possession over the land, however, continued with Hameed and after his death, petitioner is holding possession of entire land. 'Act, 1976' was repealed by Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as 'Repeal Act, 1999') which came into force in State of U.P. on 18th March, 1999. In view thereof, now ceiling proceedings are abated but petitioner found that in revenue record entry has been made otherwise and when he sought correction of entry nothing has been done, hence this petition.
3. A counter affidavit has been filed by State of U.P. and respondent no.2 admitting that return was filed on 30.10.1976 by erstwhile tenure holder, Hamid. Thereafter, survey was made and under Section 8(3) a detailed statement was published on 10.11.1980. Khasra no.185/3M (area 3637.56 square metre) and Khasra no.167M (area 5690.70 square metre) i.e. total land 9328.26 square metre was proposed to be declared surplus. Said proposal was made final vide order dated 05.06.1981 under Section 8(4) of Act, 1976. Notification under Sections 10 (1) and (3) was published on 27.01.1986 and 10.03.1989. Application of tenure holder under Section 20 for exemption of land for agricultural purpose was rejected vide order dated 27th February, 1989. Notice under Section 10(5) was issued on 05.03.1993 and thereafter Tehshildar, Meerut took possession of surplus land on 03.04.1993. Entries in Revenue record in favour of State of U.P. were made on 16.06.1995. Thereafter disputed land was transferred to Meerut Development Authority (hereinafter referred to as 'MDA') and possession was handed over on 31.03.1997. In these circumstances, Repeal Act, 1999 has no application and writ petition deserves to be dismissed.
4. Since there was a factual dispute with regard to notice and possession etc., this Court summoned original record by order dated 05.05.2016.
5. Application submitted by Hameed, father of petitioner on 15th March, 1989 seeking exemption of land being used for agricultural purpose, under Section 20 of 'Act, 1976' is on record. Gazette notification under Section 10 was published on 28th July, 1990 and thereafter notice under Section 10(5) was sent to Hamid son of Chanda, resident of village Dugrawali, District Meerut by registered post, A.D., vide letter dated 05.03.1993. Dakhalnama shows that possession of land was taken on 3rd April, 1993 in presence of Sri Hamid but he refused to sign on Dakhalnama. Thereafter, competent authority sent a letter on 27th September, 1995 for change in Revenue record by removing name of Hamid and entering State Government therein. We also find on record a possession memo dated 31.03.1997 whereby disputed land was transferred in presence of Revenue Inspector to representative of 'MDA'. Father of petitioner died in 1999. Petitioner Rashid submitted a representation dated 16.09.2003. It is on record, addressed to Secretary, Housing and Urban Planning, wherein he has not stated anywhere that his father was not communicated any notice etc. but admits that after death of his father, he made inquiry and came to know that disputed land was recorded in name of State. Letter submitted by Hameed to State Government requesting for exemption under Section 20 also did not state that proceedings initiated by Ceiling Authority are not valid and he was not served with any notice at all or that declaration of surplus land is incorrect. He simply said that possession of land is still with him and it is being used for agricultural purpose, therefore, exemption may be granted under Section 20. Land was declared surplus by prescribed authority vide order dated 05.06.1981 and Hameed sent representation on 15th March, 1989 in which he did not dispute correctness of the said order. Dakhalnama was prepared by Sri Pal Jain, Record Inspector, Meerut and it is duly signed by two witnesses also.
6. From above facts, we find that there is no quarrel with correctness of ceiling proceedings initiated by Prescribed Authority and also that a particular area of land was declared surplus vide order dated 05.06.1981. This fact was well within knowledge of erstwhile tenure holder i.e. Hameed, father of petitioner, and it is for that reason, he made a representation on 15th March, 1989 requesting for exemption under Section 20 which was not allowed. To this extent, we find nothing otherwise on record and we have no hesitation in holding that valid ceiling proceedings were already completed declaring certain land of Hameed, father of petitioner as surplus vide order dated 05.06.1981 and that order attained finality after publication of notification under Sections 20(1) and (3). For the purpose of possession, it is also evident from record that a notice was prepared on 5th March, 1993 to be sent to Sri Hameed, father of petitioner by registered post, A.D., requiring him to hand over possession of land within 30 days, failing which, it shall be taken forcibly. A copy of notice dated 5th March, 1993 is also on record. But what is on record does not disclose whether the said notice was actually sent to addressee under registered post as contemplated.
7. For the purpose of deciding this writ petition, in our view, the basic question for consideration is whether possession of disputed land was actually taken by authority concerned pursuant to ceiling proceedings conducted under 'Act, 1976'. For the reasons that if above question is answered against respondents in view of 'Repeal Act, 1999' respondents thereafter would not be able to claim possession as the entire ceiling proceedings including order declaring surplus of certain land of petitioner's predecessor would stand abated.
8. Before discussing relevant material on record in the light of question, there was actual possession taken by respondents of disputed land. It would be appropriate to have a bird's eye view as to how it should be determined whether possession of land actually has been taken or not.
9. In context of Land Acquisition Act, 1894 (hereinafter referred to as 'Act, 1894'), the question as to when it can be said that actual possession of land has been taken by State, has been considered by Courts time and again.
10. In the chain of precedents we first come to the Supreme Court's authority in Balwant Narayan Bhagde Vs. M.D. Bhagwat and others, 1976 (1) SCC 700. It is a three Judges judgment. The majority view is the opinion expressed by Hon'ble Bhagwati, J. for himself and Hon'ble Gupta, J. while contrary view was expressed by Hon'ble Untwalia, J. His Lordship Untwalia, J. observed that taking possession means taking of possession on the spot. It is neither a possession on paper nor symbolical possession. The Act is silent on the point as to what is the mode of taking possession. Unless possession is taken by written agreement of party concerned, the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that authority has taken possession on land. It may be in the form of declaration by beat of drum or otherwise or by hanging a written declaration on the spot. Presence of owner or occupant of land to effectuate taking of possession is not necessary. When possession has been taken, owner or occupant of land is dispossessed. Once possession has been taken land vests in Government.
11. The majority judgment delivered by Hon'ble Bhagwati, J. disagreeing with Hon'ble Untwalia, J. said that when State proceeds to take possession of land acquired, it must take actual possession of land since all interests on land are sought to be acquired by it. There can be no question of taking symbolical possession in the sense understood by judicial decisions under the Code of Civil Procedure (hereinafter referred to as the "CPC"), nor would possession merely on paper be enough. The Court further said:
"What the Act contemplates as a necessary condition of vesting of the Land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the 'pot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was laying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it."
(emphasis added)
12. In General Manager, Telecommunication and another Vs. Dr. Madan Mohan Pradhan and others, 1995 Supp.(4) SCC 268 it was claimed on behalf of State that possession was taken on 12.04.1976 and handed over to Union of India. With regard to mode and manner of possession the Court said:
"It is common knowledge that possession would always be taken under a memo and handing over also would be under a memo. It is a recognized usual practice in all the acquisition proceedings."
13. In State of Tamil Nadu and another Vs. Mahalakshmi Ammal and others, 1996(7) SCC 269 the Court said:
"Possession of the acquired land would be taken only by way of a memorandum, Panchanama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under Section 16 divested in the illegal occupant."
14. The question as to how physical possession of land is to be taken, then was considered in Balmokand Khatri Educational and Industrial Trust Vs. State of Punjab, 1996(4) SCC 212, wherein the Court said in para 4 of the judgment as under:
"4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession".
(emphasis added)
15. The majority opinion of Balwant Narayan Bhagde (supra) was considered in Tamil Nadu Housing Board Vs. A. Viswam, 1996 (8) SCC 259 wherein also a dispute of actual possession was raised. The Court relying on memorandum of Panchnama prepared by Land Acquisition Officer for taking possession of acquired land and also the letter written by respondent wherein he admitted title of respondent but sought for allotment of an alternative site, held that there was no question of requesting for alternative site if according to respondents the title still vested in him and has not been vested in the State by taking possession. Paras 9 and 10 of the judgment relevant for our purpose is reproduced as under:
"9. It is settled law by series of judgement of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not co-operate in taking possession of the land.
10. It is seen that in a letter written by the respondent himself, admitting the title of the Board to the land in the said survey number, he sought for allotment of alternative site. In other words, unless possession is taken and he is divested of the title and the same is vested in the appellant, he cannot make request to the appellant for providing him alternative site. It is not his case that at that stage he was still continuing to have title to the land in dispute. The admission is inconsistent with and incongruous to his interest. He was also aware that award was made and the possession obviously should have been taken thereunder......."
16. The next authority is Larsen and Toubro Ltd. Vs. State of Gujrat and others, 1998 (4) SCC 387. Therein Court referred to Panchnama prepared by Deputy Collector showing that possession was taken and found it sufficient to hold that possession of land in question in that case was taken as contemplated under Act, 1894.
17. In P.K. Kalburqi Vs. State of Karnataka, 2005(12) SCC 489, Court referred to the observations of Hon'ble Bhagwati, J. in Balwant Narayan Bhagde (supra) and said, when there is no crop or structure on the land only symbolic possession would be taken.
18. In Sita Ram Bhandar Society, New Delhi Vs. Lt. Governor, Government of N.C.T. Delhi and others, 2009(10) SCC 501, Court after referring earlier decisions said that while taking possession, symbolic and notional possession is not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Where a large area of land with a large number of owners is subject matter of possession, Court said, that, it would be impossible for Collector or Revenue officials to enter each bigha or biswa and take possession thereof. Pragmatic approach has to be adopted by Court. It further said:
"...one of the methods of taking possession and handing it over to the beneficiary department is the recording of a Panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government."
19. Similarly in Brij Pal Bhargava and others Vs. State of U.P. and others, 2011(5) SCC 413 accepting possession Court upheld the issue of possession on the basis of possession receipts and said that mere fact that in revenue record there is no mutation or that erstwhile owner actually is still occupying acquired land would make no difference.
20. After having a retrospect of earlier authorities, in Banda Development Authority, Bana Vs. Moti Lal Agarwal and others, 2011(5) SCC 394, Court crystallized certain principles to determine when possession taken would be held to be actual physical possession by authorities and it reads as under:
"37. The principles which can be culled out from the above noted judgments are:
(i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken."
21. In Jagdish and others Vs. State of U.P. and others, 2008(5) ADJ 5, (a Division Bench judgment of this Court) wherein one of us (Hon'ble Sudhir Agarwal, J.) was a member, Court referred to an authority letter of Special Land Acquisition Officer containing endorsement of Executive Engineer taking possession. It was held that possession was taken by revenue authorities.
22. The said view has been followed in reference to Act, 1976 in Writ Petition No. 40947 of 2004 (Punia @ Pania and another vs. State of U.P. and others) vide judgement dated 26.05.2016.
23. Now, we shall examine relevant material available before us along with original record produced for perusal to find out whether possession of disputed land was actually taken by respondents or not. It is claimed that notice under Section 10(5) was prepared on 5th March, 1993, and on top, it is mentioned that it is to be sent by registered post, A.D. However, neither original record contains anything to show that said notice was actually remitted to addressee by registered post, as contemplated, or served in any other manner. There is neither receipt number nor any other material available on record. The aforesaid letter required Hameed to voluntarily hand over possession of surplus land within 30 days and in case, he failed to comply with the said direction, Tehsildar was authorised to take forcible possession of 'surplus land' declared vide order dated 05.06.1981. This 30 days period obviously would have commenced on and after service of notice upon addressee. When it was served is not clear either from original record or from counter affidavit filed by respondents. Even if, we assume that notice dated 5th March, 1993 was served on the same date, 30 days period would have expired on 4th April, 1993. Therefore, noticee i.e. Hameed was under obligation to hand over voluntarly possession by 4th April, 1993 and only thereafter, there could have been any occasion for Tehsildar to take forcible possession of surplus land. In the present case, record contains a photo copy of Dakhalnama dated 03.04.1993. Original Dakhalnama is not on record and only a photo copy thereof has been placed on record. It could not be explained by learned Standing Counsel as to why original record did not contain original copy of Dakhalnama. Even if we take photo copy of Dakhalnama dated 03.4.1993 on its face value, we find it mention that tenure holder i.e. Hameed refused to sign Dakhalnama. This endorsement shows that possession was not handed over by Hameed voluntarily. If that be so, how there could have any occasion of forcible possession before 4th April 1993. We find it difficult to understand. Even learned Standing Counsel could not explain the same. The question of forcible possession in case of non-compliance by tenure holder, taking recourse under Section 10(6) could not have arisen on 3rd April, 1993. This shows that the so-called Dakhalnama, photo copy whereof has been placed on original record is not trustworthy and creditworthy document and may have been preprepared subsequently, sitting in the office and not on the spot. In order to show that possession was actually taken by respondents, onus lies upon them, which in our view, respondents have miserably failed. So-called Dakhalnama has neither been prepared in accordance with law nor even otherwise is a valid document.
24. Moreover, in the letter dated 2003 submitted by petitioner, he has reiterated that he is in possession of disputed land. We find no material to show that this claim of Rashid was ever contradicted or shown wrong by respondents. It is true that in the matter of possession of immovable property if a memo of possession, duly prepared in the presence of witnesses and placed before Court, it shall treat discharge of initial burden on the part of authorities and would shift onus upon the person claiming that he is still in possession to show otherwise, but in the present case, we are satisfied that even this initial burden has not been discharged by respondents effectively by placing any creditworthy material before us.
25. We inquired from Standing Counsel as to why photo copy of Dakhalnama is available on original record instead of original copy but he could not explain the same at all. We, therefore, have serious doubt in genuineness of aforesaid document.
26. In the entirety of facts and circumstances, thus, we find no hesitation in holding that respondents have miserably failed to prove that possession of disputed land was taken before cut off date prescribed under 'Repeal Act, 1999'. That being so, provisions of 'Repeal Act, 1999' would stand attracted in this case rendering entire earlier proceedings inoperative, ineffective and abated. In the result, disputed land shall continue with petitioner.
27. In the result, writ petition is allowed. It is held that since disputed land was not taken in possession by respondents in accordance with provision of 'Act, 1976' till the same was repealed in 1999, the ceiling proceedings have abated and land in dispute would continue to belong to petitioner. Respondents are restrained from interfering in possession of petitioner over disputed land.
28. Petitioner shall be entitled to costs which we quantify to Rs.50,000/-
Order Date :-19.12.2016 A.Kr.*