Allowed

Arshad and 11 Others v. State of U.P. and 2 Others

Allahabad HC11 Dec 2017WRIC/25070/2015

Case brief

AI extract

What is this about?

This court quashed an order denying petitioners benefits under the 1999 Urban Land Ceiling Repeal Act, holding that the state failed to prove forcible dispossession following mandatory statutory procedures. Consequently, ceiling proceedings were declared abated.

What did the court decide?

Impugned order dated 17.07.2014 quashed. Petitioners held entitled to benefit of Act, 1999. Ceiling proceedings abated. Respondents restrained from interfering with possession. Revenue records to be c

Arshad and 11 Others Vs State of U.P. and 2 Others — Land Acquisition | Allahabad HC (2017)

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Court No. - 34

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Case :- WRIT - C No. - 25070 of 2015

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Petitioner :- Arshad and others Respondent :- State of U.P. and others Counsel for Petitioner :- Anil Kumar Aditya Counsel for Respondent :- C.S.C.

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

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Heard Sri Anil Kumar Aditya, Advocate, for petitioners and learned Standing Counsel for respondents.

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By means of present writ petition filed under Article 226 of Constitution, petitioners are seeking a direction in the nature of certiorari for quashing the order dated 17.07.2014 whereby Additional District Magistrate (Finance and Revenue)/Prescribed Authority, Urban Ceiling, has held that petitioners shall not be entitled to the benefit of Urban Land (Ceiling & Regulation) Repeal Act, 1999 (hereinafter referred to as the “Act, 1999”) as petitioners are not in possession over the land which was declared surplus under Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the “Act, 1976”). It appears that impugned order has been passed by Prescribed Authority on the basis of legal opinion obtained from District Government Counsel (Civil) vide letter dated 07.08.2013 and legal opinion was given on 22.08.2013. In order to test the finding as returned by Prescribed Authority in impugned order, we need to refer paragraphs of writ petition wherein it has been categorically stated that no dispossession of petitioners took place or petitioners ever voluntarily surrendered possession over land in dispute. Relevant paragraphs 21, 22, 23 and 24 are quoted hereunder:

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“21. That mere change in entry also not enough the proof of dispossession. The petitioners have not surrendered their land in pursuance of provisions of sub-section (5) of section 10 of

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the Act or not forceful possession was taken in pursuance of section (6) of Section 10 of the Act. The State Government and its authorities may not interfere with the petitioner's peaceful possession of land and make entries in revenue records in accordance with rules.

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22. That mere vesting of land declared surplus under Act without taking de facto possession is of no consequence. Land holder shall be entitled to benefit of Repeat Act. Possession has to be actual possession and not symbolic. There has to be proper service under section 10(5) and 10(6) of the Act, 1976. Mere change in entry also not enough proof of dispossession. The petitioners have not surrendered their land in pursuance of provisions of sub-section (5) of Section 10 of the Act and no forceful possession was taken in pursuance of sub section (6) of Section 10, as such now after repeal Act, no proceedings can be taken.

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23. That section 10(5) of the Act provides that Competent Authority may by notice in writing order any person, who may be in possession of the land declared surplus to surrender or deliver possession thereof to the State Government or to any person duly authorized in this behalf within 30 days of the service of notice. Section 10(5) makes it clear and shows that vesting is something different and distinct from possession.

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24. That since the actual physical possession over the property in dispute remained with the petitioners and possession if any of the State Government under section 10(5) (6) is notional, symbolic and formal possession and the possession cannot be deemed to be actual physical possession thus the State Government or the competent authority cannot claim the land to be possessed by the State Government in view of coming in force the Repealing Act. ”

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A counter affidavit has been filed in reply to the pleadings raised in the writ petition wherein the notification under Section 10(3) dated 20.02.1990 in respect of the land in question has been admitted and it is further stated that notice under Section 10(5) of Act, 1976 was issued on 05.07.1993 and duly served upon heirs of tenure holders on 26.07.1993. The forceful possession was taken on 27.07.1993, a day after service of notice under Section 10(5). The relevant paragraph 6 of counter affidavit is quoted hereunder:

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^^6;g fd ;kfpdk ds izLrj&04 esa of.kZr dFku ftl :i esa vafdr gS Lohdkj ugha gS] blds izfrmRrj esa dguk gS fd Hkw/kkjd gkf'ke iq= bykgh cD'k fuoklh xzke nkcdhtqukjknkj] lgkjuiqj us uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ vf/kfu;e 1976 dh /kkjk 6 ¼1½ ds vUrxZr viuh leLr Hkwfe@ Hkou dk fooj.k nsrs gq;s viuk fooj.k i= fnukad 14-08-1976 dks izLrqr fd;k Fkk ftldk okn la[;k 1464@76 dk;e gqvkA vko';d losZ{k.kksijkUr Hkw/kkjd gkf'ke dks /kkjk 8 ¼3½ ds vUrxZr vkys{; fooj.k i= fnukad 25-05-1977 dks tkjh fd;k x;k] ftlesa Hkw/kkjd dh dqy Hkwfe 16]474-60 o0eh0 esa ls iz;ksT; Hkwfe 2000-00 o0eh0 NksMrs gq;s xzke nkcdhtqukjnkj ds [kljk uEcj 131e] 423e] 577e] 598e] 552e o [kljk uEcj 140 e esa ls 14]474-60 o0deh0 Hkwfe vfrfjDr fjDr izLrkfor dh x;h] mDr vkys[; fooj.k i= dh rkehy Hkw/kkjd ds okfjlku lqyrku vgen ij fnukad 10.06.1977 dks O;fDrxr :i ls izkslsl loZj }kjk djkbZ x;hA Hkw/kkjd }kjk fu/kkZfjr vof/k 30 fnu ds vUnj vkifRr izLrqr u djus ds dkj.k rRdkyhu l{ke izkf/kdkjh }kjk /kkjk 8 ¼4½ ds vUrxZr fnukad 06-06-1979 dks vkns'k ikfjr dj vkys[; fooj.k i= dh iqf"V dh rFkk mDr vkns'k ds vuqikyu esa Hkw/kkjd dks /kkjk&9 ds vUrxZr vfUre vkys[; fooj.k i= fnukad 21-06-1979 dks tkjh fd;k x;k] ftldh rkehy Hkw/kkjd Jh gkf'ke ij fnukad 26-6-1979 dks O;fDrxr :i ls izklsl loZj }kjk djkbZ x;hA /kkjk 10 ¼1½ dh foKfIr fnukad 10-07-1979 dks o /kkjk 10 ¼3½ dh foKfIr fnukad 20-

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02-1990 dks jktdh; xtV esa izdk'ku gsrq izsf"kr dh x;hA foKkfIr;ksa ds izdk'kuksaijkUr Hkw/kkjd dks /kkjk 10 ¼5½ ds vUrxZr uksfVl fnukad 05-07-1993 dks tkjh fd;k x;k] ftldh rkehy Hkw/kkjd ds okfjlku Jh fj;ktqy glu ij fnukad 26-07-1993 dks O;fDrxr :i ls djkbZ x;hA mlds mijkUr jkT; ljdkj }kjk fnukad 27-7-1993 dks vfrfjDr fjDr ?kksf"kr Hkwfe [kljk uEcj 131e] 423e] 597e] 591e o 140e dqy jdcbZ 14]474-60 o0eh0 ckds xzke nkcdhtqukjnkj ij dCtkn[ky izkIr fd;k o fnukad 08-09-1993 dks ijokuk veynjken tkjh dj iz'uxr dCtk izkIr Hkwfe ij fnukad 10-09-1993 dks jkT; ljdkj dk uke vetnjken djk;k x;kA Hkw/kkjd ds okfjlku Jh fj;ktqy glu vkfn us ekuuh; ftyk tt U;k;ky; esa vihy la[;k 247@93 nk;j dh] ftldks vij ftyk tt us fnukad 12-03-1996 dks [kf.Mr dj fn;kA bl vkns'k ds fo:) Hkw/kkjd ds okfjlku us ekuuh; mPp U;k;ky; esa fjV ;kfpdk la[;k 22229@ 96 nk;j dh] ftldks ekkuh; mPp U;k;ky; us vius vkns'k fnukad 22-072002 ds }kjk fuLrkfjr fd;k] ftlesa ekuuh; mPp U;k;ky; us vius vkns'k fnukad 22-07-2002 ds }kjk fuLrkfjr fd;k] ftlesa ekuuh; mPp U;k;ky; us vkns'k fd;k fd ;fn iz'uxr Hkwfe ;kph ds dCts esa gS rks ;kph ds dCts dks fMLVcZ u fd;k tk;sA

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;g fd iz'uxr vfrfjDr fjDr Hkwfe ij uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ vf/kfu;e 1976 ds izkfo/kkuksa ds vUrxZr dk;Zokgh djrs gq;s jkT; ljdkj }kjk fnukad 27-07-1993 dks fujlu vf/kfu;e 1999 ykxw gksus ls iwoZ gh dCtkn[ky izkIr fd;k tk pqdk Fkk rFkk fnukad 08-09-1993 dks ijokuk veygnjken tkjh dj mDr dCtk izkIr Hkwfe ij fnukad 10-09-1993 dks jkT; ljdkj dk uke veynjken djk;k tk pqdk FkkA ;kph dk ;g dFku fd voS/kkfud :i ls eksgEen gkf'ke dk uke [kkfjt dj jkTlo vfHkys[kksa esa jkT; ljdkj dk uke ntZ djk;k x;k gS] vlR; ,oa Lohdkj gSA**

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“6. That the contents of para 4 to the petition, as mentioned,

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are not admitted. In its counter, it is to say that the land holder Hashim S/o Ilahi Baksh R/o Village Dabki Junardar, Saharanpur had on 14.08.1976 submitted a statement detailing all his lands/buildings u/s 6(1) of The Urban Land (Ceiling & Regulation) Act, 1976, whereupon suit no. 1464/76 came to be instituted. After necessary survey, the land holder Hashim was u/s 8(3) issued a draft statement dated 25.05.1977 leaving the usable land measuring 2000.00 square metres from out of the total 16,474.60 square metres land of the land holder and proposing to declare 14,474.60 square metres land of Village Dabki Junardar's Khasra Nos. 131Ma, 423Ma, 577Ma, 598Ma, 552Ma and from Khasra No. 140Ma to be vacant land in excess. The aforesaid draft statement was on 10.06.1977 personally served through the process server upon Sultan Ahmad, the successor of the land holder. No objection having been filed by the land holder within the specified period of 30 days, an order dated 06.06.1979 was passed u/s 8(4) by the then competent officer confirming the draft statement, and in compliance thereof, the land holder was on 21.06.1979 issued a final draft statement u/s 9, service whereof was on 26.06.1979 effected personally on the original land holder through the process server. The Notification dated 10.07.1979 u/s 10(1) and the Notification dated 20.02.1990 u/s 10(3) were sent for being published in the Government Gazette. After the notifications having been published, a notice u/s 10(5) was issued on 05.07.1993 to the land holder, service whereof was effected personally on 26.07.1993 on land holder's successor Riyazul Hasan. Thereafter, occupation and possession over Khasra Nos. 131Ma, 423Ma, 597Ma, 591Ma and 140Ma having a total area of 14,474.60 square metres situated in the village Dabki Junardar declared as vacant land in excess, was obtained by

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the government on 27.07.1993; and through issuance of an order of execution on 08.09.1993, the possession of the land in question was obtained on 10.09.1993 and the same was entered in the name of the state government. Shri Riyazul Hassan and others, successors of the land holder, preferred an appeal no. 247/93 before the court of learned District Judge, which was dismissed by the learned additional district judge on 12.03.1996. Aggrieved thereby, the successors filed a writ petition no. 22229/1996 before the Hon'ble High Court, which has been decided by the Hon'ble High Court vide its order dated 22.07.2002 wherein the Hon'ble High Court has ordered that if the land in question is in possession of the petitioner, his possession shall not be disturbed.

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That, the state government by proceeding under the provisions of the Urban Land (Ceiling and Regular) Act, 1976, had obtained possession on the land in question on 27.07.1993 before the Repeal Act, 1999 coming into effect, and through issuance of an execution order on 08.09.1993, the possession and occupation of the land had been obtained and it had been entered in the name of the state government on 10.09.1993. The statement of the petitioner that the government's name has been entered in revenue records preceded by illegally removing the name of Mohd. Hashim therefrom, is false and unacceptable.”

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(English Translation by Court)

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We have summoned original record in this case in order to verify as to whether there was a proper service of notice under Section 10(5) of Act, 1976 and as to whether there was any forceful dispossession of the tenure holder under Section 10(6) of Act, 1976. From the record, we find that notice under Section 10(5) of Act, 1976 was issued on 05.07.1993 and service of notice is reported on the back of it in the date 26.07.1993. The recital in the notice is to the effect

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that if the possession of land is not voluntarily given within 30 days, then action will be taken under Section 10(6) of Act, 1976. So there has to be a 30 days time in between service of notice under Section 10(5) and issuance of notice under Section 10(6). From the perusal of the said possession memo which is available on record, we find that it is of 27.07.1993, i.e., just after a day of notice under Section 10(5) but in the possession memo there is only recital to the effect that Sri Prem Chandra, Supervisor Kanoongo came on the spot and took possession. Who delivered possession is not shown in the possession memo and there is further no detail about who are the witnesses.

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Firstly, we find that there is inherent defect in the notice under Section 10(6) itself because in law it should have been issued only on expiry of 30 days from the service of notice under Section 10(5), i.e. 26.07.1993 and secondly we also do not find that there is any detail of witness and about the person who delivered the possession. The place where the person who is said to have delivered the possession does not bear any signature or note. Possession memo, therefore, certifying this forceful dispossession of tenure holder in the present case is not an authentic document. The legal position with regard to possession memo has come to be discussed in detail in case of Balmokand Khatri Educational and Industrial Trust v. State of Punjab AIR 1996 SC 1239 in which it has been held that for the purpose of actual physical possession, 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. Following this test in the present case, we find that there has been no involvement of any person in the execution of possession memo so that it can be considered that forceful possession took place on a particular date in presence of so and so witnesses detail of which are given thereon. We, therefore, hold that there has been no forceful dispossession by respondents of the tenure holders from

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land in question and reasons recorded by Prescribed Authority in the impugned order are absolutely unsustainable.

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In the result, the writ petition is allowed. Order dated 17.07.2014 is hereby quashed. Petitioners are held entitled to the benefit of Act, 1999 and we hold that ceiling proceedings in respect of land in question stood abated. Respondents are restrained from interfering with the petitioners' possession over land in question and petitioners are entitled to get the revenue record pertaining to land in question corrected.

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Petitioners shall also be entitled to cost quantified to Rs. 10,000/-.

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Dt. 11.12.2017 PS

Arshad and 11 Others v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Arshad and 11 Others v. State of U.P. and 2 Others

Case brief

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