Allowed

Hori Lal @ Anurudh Prasad v. State of U.P. and 4 Ors.

Allahabad HC11 Dec 2017WRIC/19484/2015

Case brief

AI extract

What is this about?

This court allowed the petitioner's petition holding that ceiling proceedings abated under the Urban Land (Ceiling & Regulation) Repeal Act, 1999 since the State never took actual physical possession despite declaring the land surplus. The petitioner was restrained from interfering with the land and given leave to correct revenue records.

What did the court decide?

Restoration of entries in revenue records and restraint on respondents from interfering with petitioner's possession over the disputed land.

Hori Lal @ Anurudh Prasad Vs State of U.P. and 4 Ors. — Land Acquisition | Allahabad HC (2017)

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Court No. - 34

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Case :- WRIT - C No. - 19484 of 2015

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Petitioner :- Hori Lal @ Anurudh Prasad Respondent :- State of U.P. and others Counsel for Petitioner :- S.K. Pal,Sushil Kumar Pal Counsel for Respondent :- C.S.C.,Ram Raj Singh

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Hon'ble Sudhir Agarwal, J. Hon'ble Ajit Kumar, J.

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Heard learned counsels for parties and perused the record.

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In the instant writ petition, the relief claimed is to the effect that entries of petitioner's may be restored in the revenue records and respondents may be restrained from interfering with the possession of petitioner over the land in question in any manner. The contention raised is that despite the land being declared surplus under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the “Act, 1976”) since no actual physical possession was taken from original tenure holder, namely, Ram Kishan, father of petitioner, the ceiling proceedings stood abated in view of Urban Land (Ceiling & Regulation) Repeal Act, 1999 (hereinafter referred to as the “Act, 1999”). The relevant paragraphs regarding actual physical possession as claimed by petitioner in the writ petition are reproduced as under:

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“10. That till the date of petitioner is in actual physical possession over the land declared surplus by Prescribed Authorities and no proceeding was initiated for taking the actual physical possession either from late Ram Kishun or from the petitioner. In fact Late Ram Kishun died in the year 1990 and above proceedings shown against him after his death.

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11. That it is relevant to mention here that Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act No. 15 of 1999) came into force and the Urban Land (Ceiling and Regulation) Act 1976 (hereinafter referred to as the Principal Act) was repealed.

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12. That the state has not taken the actual physical possession either from the father of the petitioner late Ram Kishun or from the petitioner and the petitioner is in actual physical possession over the land in dispute and is cultivating the land and his livelihood depends upon the agriculture.

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13. That under Section 4 of the Repeal Act 1999 the further proceedings in Case No. C-231/1976 (State Versus Ram Kishun) have been abated.

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Counter affidavit has been filed by State-respondents 3, 4 and 5 wherein after publication of Notice under Section 10(3) of Act, 1976, notice under Section 10(5) of Act, 1976 issued to tenure holder on 27.12.1997 has been admitted and in view thereof, it is stated in the counter affidavit that land stood vested with State Government and, therefore, in respect to surplus land ceiling proceedings have arrived at its logical end. It is further contended that in view of the land being vested with State Government after being declared surplus, it was further transferred to Allahabad Development Authority under Government Order dated 11.12.1996. In a nutshell the emphasis is that after publication of notification under Section 10(3) and notice being issued under Section 10(5) of Act, 1976 to tenure holder for handing over possession, all rights in respect of land in question vested with State and in view of this, the claim of petitioner regarding possession over land in question is illegal and petitioner cannot have any benefit of Repeal Act, 1999. Relevant paragraphs in this regard, i.e., paragraphs-7, 8, 9 and 10 of counter affidavit are reproduced as under:

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“7. That the contents of paragraphs 15 and 16 of the writ petition are not admitted in the manner stated and in reply thereto, it is most respectfully submitted that the notice under section 10(5) of the Act was sent on 27.12.1997 for handing over the possession and the land in dispute declared surplus vacant land under the valid ceiling proceeding has already

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been vested with the State Government free from all encumbrances by virtue of notification under Section 10(3) of the Act published in official gazette on 16.8.1997.”

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8. That the contents of paragraph 17 of the writ petition are not admitted in the manner stated and in reply thereto, it is most respectfully submitted that the notice under Section 10(5) of the Act was sent on 27.12.1997 for handing over the possession of land in dispute. It is relevant to mention here that provisions of Section 11, 12, 13 and 14 of Principal Act of 1976 has been preserved and the same is still holding field.

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9. That the contents of paragraphs 18, 19 and 20 of the writ petition are not admitted and in reply thereto, it is most respectfully submitted that from the perusal of the official record, it has been transpired that the alleged representation dated 27.1.2015 and 3.4.2015 were not received in the office hence no question arises for deciding the same being the same are not available in the official record.

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10. That the contents of paragraphs 21, 22 and 23 of the writ petition are not admitted and in reply thereto, it is most respectfully submitted that on the return filed by the tenure holder, case No. 231 of 1976, State Vs. Ram Kishun has been registered in respect of which proceeding under Section 8(3) to Section 10(5) has already been completed inasmuch as entire proceedings has been got completed before enforcement of Repeal Act of 1999 and in the said proceedings 1/2 part of total 14711.59 Sq. Mtrs of Arazi No. 567, 570, 581, 606, 717, 723 situated in Gram Saidpur, Tehsil Chail (Sadar), district Allahabad i.e. 7355.79 and 1/3 area of total 13913.36 i.e. 4637.39 Sq. Mtrs land of Arazi No. 311, 324, 329, 332 situated in Gram Saidpur, Tehsil Chail (Sadar), district Allahabad has been declared surplus vacant land in which the petitioner has

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claimed relief in respect of land of Arazi No. 567 and 723 and no relief has been claimed by the petitioner in respect of other Arazi as mentioned above.”

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From the pleadings as raised by the parties, we are convinced that in the present case after issuance of notice under Section 10(5) of Act, 1976 no voluntary surrender of land took place at the end of tenure holder. Under the circumstances, it was incumbent upon ceiling authorities to have proceeded with provisions as contained under Section 10(6) of Act, 1976 and consequential forcible dispossession, but this has not happened, and, therefore, in the event of there being no peaceful dispossession as was in the present case, no forceful dispossession of the tenure holders also took place. Under the circumstances, land though was declared surplus under Act, 1976 but possession thereof remained with tenure holder and after the death of original tenure holder, his heir namely the petitioner. Considering the issue of forcible dispossession under Section 10(6) in the event of there being no voluntary surrender of land, Court has categorically held that there has to be a document evidencing the factum of dispossession in the form of possession memo or Panch-nama. This Court very recently has dealt with this aspect in detail in Writ Petition (Writ-C) No. 16089 of 2015 (Ram Khelawan Vs. State of U.P. and others) decided on 06.11.2017 and relevant paragraphs of judgment read as under:

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“5. This assumption on the part of respondents is clearly erroneous. Today under the directions of this Court original record has also been produced wherein also it is evident that after issue of notice under Section 10(5) nothing further has been done and there is no document in original record to show that actual and physical possession of land was ever taken by respondents. In this view of the matter, we have no hesitation in holding that no valid or actual or physical possession was

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taken by respondents from the petitioner.

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6. The kind of possession contemplated under Section 3 and 4 of Act 1999 is actual possession and not a mere paper possession. In the context of Land Acquisition Act, 1894 (hereinafter referred to as 'Act 1894') this question has been considered time and again. 7. The first authority on the subject is 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.”

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“15. 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.

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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:

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"...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."

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“17. 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:

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"37. The principles which can be culled out from the above noted judgments are:

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(i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.

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(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.

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(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

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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.

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(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.

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(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."

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Viewed from the above legal position, we find that in the present case there has been no notice under Section 10(6) of Act, 1976 nor, any consequential action by State authorities in taking actual physical possession from petitioner till repeal Act, 1999 came into force. Petitioner is, therefore, entitled to the benefit of Repeal Act, 1999 and in respect of the land in question we hold, therefore, that ceiling proceedings have stood abated. Respondents are, therefore, restrained from interfering with the possession of petitioner over land in dispute and it will always be open for petitioner to get the revenue

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records of land in question corrected.

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The writ petition is allowed with cost which we quantify to Rs. 10,000/-.

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Dt. 11.12.2017 PS

Hori Lal @ Anurudh Prasad v. State of U.P. and 4 Ors.

Case brief

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Hori Lal @ Anurudh Prasad v. State of U.P. and 4 Ors.

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