Allowed

Bhola Nath v. State of U.P. and 2 Others

Allahabad HC6 Dec 2017WRIC/26656/2015

Case brief

AI extract

What is this about?

The court held that the State failed to take actual physical possession of surplus land without serving the mandatory notice under Section 10(5) or using force under Section 10(6) of the 1976 Act. Consequently, the petitioner remains the bona fide owner, and the Repeal Act 1999 protects his possession.

What did the court decide?

Respondents directed not to interfere with peaceful possession. Petitioner directed to get revenue records corrected.

Bhola Nath 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. - 26656 of 2015

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Petitioner :- Bhola Nath Respondent :- State Of U.P. & 2 Others Counsel for Petitioner :- Raj Karan Yadav Counsel for Respondent :- C.S.C.,Brijendra Kumar Ojha,S.C.

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

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Heard learned counsel for petitioner and Learned Standing Counsel.

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In the present writ petition grievance raised by the petitioner is that in spite of Urban land (Ceiling and Regulation ) Repeal Act, 1999 (hereinafter referred to as “the Repeal Act 1999”) having come into force, State respondents are interfering with the possession of petitioner, claiming that ceiling proceedings in respect of land in question declared as surplus under Urban Land (Ceiling and Regulation) Act 1976 (hereinafter referred to as “the Act 1976”) have not abated.

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Contention on behalf of the petitioner is that ceiling proceedings in the instant case though arrived at the stage whereat the land in question was declared as surplus and notice under Section 10(5) of the Act 1976 was allegedly issued on 14.5.1996, asking petitioner to surrender possession of land in question voluntarily but no further action was taken in this regard and actual physical possession of land had continued with petitioner. The contention is that Section 10(3) of the Act 1976, by which a legal fiction is created, vests title of land in question in favour of the State in the event of the land being declared surplus, but there would be no automatic transfer of actual physical possession of the land and where tenure holding has not voluntarily surrendered possession in response to the notice under Section 10(5), the State is required to take appropriate action under Section 10(6) of Act 1976. Since in the present case, according to petitioner no such notice was issued under Section 10(6) of the Act 1976 nor, any actual physical possession was taken by force, therefore, petitioner is entitled to benefit of Repeal Act 1999 and to retain possession. Any interference by the State

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Authorities/Revenue Authorities with the possession of petitioner is wholly unjust, illegal and arbitrary inasmuch as relevant entries in revenue record pertaining to land in question are also required to be corrected in favour of petitioner.

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Relevant paragraphs regarding actual physical possession, nos. 5 to 8 of writ petition are quoted as under:

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“4. That the petitioner is in physical possession over land in dispute respondents have not taken possession from the land holder and land holders not surrender possession to the respondents till the date.

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That is is specifically pointed out here that on the basis of illegal and without jurisdiction order under Section 8(4) of the Act, competent authority proceeded further Under Section 10(3) vesting of title followed by mutation etc., but for taking possession neither notice sent according to Rule to the land holder nor served on land holder, respondents have not taken possession of alleged vacant land as provided Under Section 10(5) and 10(6) of the Act, 1976 in other words we can say respondents have not taken any actual physical possession of the vacant land of the petitioner Under Section 10(5) and 10(6) except paper possession only issuing of notice Under Section 10(1).

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6. That the land holder have not surrendered the land to State, and State have not taken actual physical possession from land holder as provided Under Section 10(1) and 10(6) and land holder is continuously in possession of all alleged vacant land from 1976 to till date.

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7. That respondents are wrongly assume the possession only on the basis of proceeding Under Section 10(3) vesting of land followed by mutation in Revenue Records, whereas these proceedings have no concern with possession proceeding Under Section 10(1) and 10(6), Possession proceeding is quite deferent in urban land ceiling law.

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8. That the name of the petitioner is not in revenue records but name of the State is recorded only on the basis of mutation

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respondents have illegally assumed possession, whereas in fact respondents have not taken actual physical possession from land holder till today.”

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Counter affidavit has been filed on behalf of State respondents giving reply to the pleading raised in writ petition. It is contended that notice Under Section 10(5) of Act 1976 was duly issued on 14.5.1996 and in view thereof, proceedings have been undertaken. Notification in the official gazette was issued on 13.01.1996 and ceiling proceedings stood completed and arrived at their logical end. However, in the entire counter affidavit there is no averment to the effect that notice under Section 10(6) of Act 1976 was issued at any point of time because nothing has come on record that petitioner ever voluntarily surrendered possession of the land in question. Reply as given in paragraphs 4, 6 and 7 of counter affidavit is reproduced as under:

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** 4- ;g fd uxj Hkwfe ¼vf/kdre lhek ,oa fofu;e½ vf/kfu;e] 1976 dh /kkjk 6¼1½ ds vUrxZr Hkw&/kkjd Jh ghjk yky iq= jkeyky] fuoklh xzke&eMkSdk] rglhy&djNuk] bykgkckn }kjk fooj.k i= la[;k ds0 4468@76 ds izdj.k esa losZo{k.kksijkUr /kkjk 8¼4½ ds vUrZxr fnukad 20&12&1984 dks vkns'k ikfjr djrs gq;s Hkw&/kkjd dh 1078-35 oxZehVj Hkwfe lhekf/kD; fjDr ?kksf"kr dh x;h Fkh rFkk vf/kfu;e dh /kkjk 10¼3½ dh foKfIr dk izdk'ku jktdh; xtV esa fofKIr fnukad 13&01&1996 dks izdk'ku ds QyLo:i leLr Hkkjksa ls eqDr gksdj jkT; ljdkj esa fufgr gks x;h FkhA rRi'pkr~ /kkjk 10¼5½ ds vUrxZr lhekf/kD; fjDr Hkwfe dk dCtk lkSius fo"k;d uksfVl fnukad 14&05&1996 dks fuxZr dh x;hA rRi'pkr~ 'kklukns'k fnukad 11&12&1996 esa nh x;h O;oLFkk ds vuqlkj iz'uxr okn dh lhekf/kD; fjDRk Hkwfe bykgkckn fodkl izkf/kdj.k] bykgkckn dh vfHkj{kk esa nh pqdh Fkh rFkk jktLo vfHkys[kksa esa jkT; ljdkj ds i{k esa ukekUrfjr gks pqdh FkhA bl izdkj mDr leLr dk;Zokgh fujlu vf/kfu;e] 1999 izHkkoh gksus ds iwoZ vFkkZr 18&03&1999 ds iwoZ fu"iknu ds QyLOk:i iz'uxr oknh dh lhekf/kD; Hkwfe jkT; ljdkj esa ewy vf/kfu;e] 1976 ds izkfo/kkukuqlkj fufgr gks pqdh FkhA mDr dk;Zokgh fd fo:) izLrqr fjV ;kfpdk ekuuh; U;k;ky; esa /kkjk 8¼4½ ds vkns'k fnukad 20&12&1984 ds fo:) vR;f/kd dkyckf/kr vof/k esa yxHkx 32 o"kZ

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i'pkr~ ;ksftr dh x;h gS] tks fu;ekuqlkj Lohdkj ;ksX; ugh gSA ** “4. That under Section 6(1) of Urban Land (Ceiling and Regulation) Act 1976 in the matter of statement No.K. 4468/786 submitted by tenure holder Sri Heera Lal, S/o Ram La, R/o Madauka, Tehsil Karchhana, Allahabad, while passing order under Section 8(4) after survey under Section, 1079.35 Sq. Meters of land was declared surplus and consequent upon publication of notification under Section 10(3) in official gazette on 13.01.1996, the land free from all encumbrances, had vested in the State. Thereafter notice under Section 10(5) dated 14.05.1996 was issued for handing over possession of surplus land. Thereafter, as per provision contained in Government Order dated 11.12.1996 surplus land in dispute had been given in the possession of Allahaabd Development Authority and had been entered in Revenue Records in favour of the State. Thus in view of completion of aforesaid entire proceedings prior to coming into force of the Repeal Act 1999, i.e. 18.03.1999, disputed surplus land of petitioner vested in the State Government in view of the provisions of Original Act, 1976. This writ petition filed against the aforesaid action (of respondents) and order dated 20.12.1984 passed under Section 8(4), has been filed in the Hon'ble High Court beyond the period of limitation, after about 32 years, which as per law, is not maintainable.”

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** 6- ;g fd ;kfpdk ds izLrj la[;k& 03] 04] 05] 06 ,oa 07 esa of.kZr dFku ds mRrj esa ;g dguk gS fd ;kfpdk ds dsoy dzekad 3 ,oa 7 vafdr gSA dzekad 4] 5 ,oa 6 vafdr ugha gS ,oa bu izLrjksa esa of.kZr dFku ftl izdkj mfYyf[kr fd;s x;s gSa] Lohdkj ugha gSA blds mRrj esa ;g dguk gS fd iz'uxr Hkwfe@Hkou ds lEcU/k esa ewy Hkw/kkjd ds }kjk fooj.k i= nkf[ky fd;k x;k FkkA ftldk okn la0 ds0 4467@76 ljdkj cuke HkksykukFk] fuoklh&cxcuk] rglhy&djNuk] bykgkckn lafLFkr gSa ftlds losZ{k.kksaijkUr Hkw/kkjd dh dqy Hkwfe 2578-35 oxZehVj ikbZ x;h ftl ij Hkw/kkjd dks vf/kfu;e dh /kkjk 8¼3½ ds vUrxZr uksfVl e; izk:fid fooj.kh iszf"kr dh x;hA ftl ij Hkw/kkjd dks lquokbZ dk iw.kZ volj nsrs gq;s vf/kfu;e dh /kkjk 8¼4½ ds vUrxZr vkns'k ikfjr djrs gq;s rRdkyhu l{ke izkf/kdkjh }kjk ewy Hkw/kkjd Hkksyk ukFk iq= 'kkjnknhu] fuoklh cxcuk] rglhy&djNuk dh vkjkth la0&151 ikVZ ls jdck 1078-35 oxZehVj lhekf/kD; fjDRk ?kksf"kr dh x;hA rnksijkUr

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vf/kfu;e dh /kkjk 10¼1½ o 10¼3½ dh foKfIr dze'k% fnukad 30&06&1986 o 13&01&1996 dks jktdh; xtV esa izdkf'kr djk;h x;hA rnksijkUr /kkjk 10¼5½ ds vUrxZr dCtk lEcU/kh uksfVl fnukad 14&05&1996 dks fuxZr dh x;hA bl izdkj iz'uxr lhekf/kD; fjDr Hkwfe 10¼3½ dh foKfIr ds izdk'ku ds fnukad 13&01&1996 ls leLr Hkkjksa ls eqDr gksdj iw.kZ :i ls fujlu vf/kfu;e ykxw gksus ds iwoZ ls gh jkT; ljdkj esa fufgr gks pqdh FkhA **

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6. That in reply to the averments contained in paragraphs 03, 04, 05, 06 and 07 it is submitted that there are only serial no. 3 and 7 and serial no. 4, 5 and 6 do not exist and in the manner averments are made in these paragraphs are are not admitted. In reply it is stated that statement had been filed by original tenure holder of disputed land, which is registered as Case number K.4467/76 State Vs. Bholanath, resident of Bagnana, Tehsil Karchhana, Allahabad and after survey total land of tenure holder was found to be 2578.35 Sq. metre, whereupon notice under Section 8(3) along with proposed statement was sent to tenure holder, whereupon affording ample opportunity of hearing to tenure holder and passing order under Section 8(4) of Act, the then competent authority declared 1078.35 Sq. meters of land of Plot no. 151 (Part) of tenure holder Bhola Nath, son of Sharda Deen, resident of Bagbana as surplus. Thereafter notifications under Sections 10(1) and 10(3) were published in official Gazette on 30.06.1986 and 13.01.1996 respectively. Thereafter notice under Section 10(5) was issued on 14.05.1996. Thus, disputed surplus land vested in the State Government free from all encumbrances with effect from publication of notification under Section 10(3) i.e. 13.01.1996, prior to Repeal Act.

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**7 ;g fd ;kfpdk ds izLrj LkaL;k&08] 09 ,oa 10 esa of.kZr dFku ftl izdkj mfYyf[kr fd;s x;s gSa] Lohdkj ugha gSA blds mRrj esa ;g dguk gS fd ewy vf/kfu;e dh /kkjk 10¼5½ dh uksfVl tkjh gks tkus ds i'pkr~ Hkw/kkjd }kjk u rks dksbZ fojks/k fd;k x;k vkSj u rks dksbZ vkifRr izLrqr dh x;hA rnksijkUr 'kklukns'k fnukad 11&12&1996 esa nh x;h O;oLFkk ds vuqlkj iz'uxr lhekf/kD; fjDr Hkwfe bykgkckn fodkl izkf/kdj.k] bykgkckn dh vfHkj{kk esa ns

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nh x;hA ..... **

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“7. That averments made in paragraphs 08, 09 and 10 as stated are not admitted. In reply it is stated that after issuance of notice under Section 10(5) of original Act, neither any protest was made nor any objection was filed by tenure holder. Thereafter surplus land was given in possession of Allahabad Development Authority, Allahabad in accordance with provision contained in Government Order dated 11.12.1986....”

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( English Translation by Court) (Emphasis added)

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We have also perused notice dated 26.04.1996 purported to have been issued under Section 10(5) of Act 1976 and which has been appended as Annexure-1 to counter affidavit. We find that there is no service of notice as is apparent from the document itself which is available in original. It only carries details of land and signatures of Prescribed Authority, Urban Ceiling, Allahabad. Since no notice under Section 10(5) of the Act 1976 has been served, it clearly establishes that there has been no notice, asking petitioner to voluntarily surrender possession. Moreover, as petitioner has taken the stand that he has not surrendered actual physical possession of land, which fact specifically has not been denied in the counter affidavit, except making averment that the land vested with the State, we are satisfied that on the date of enforcement of Repeal Act 1999, actual physical possession of the surplus land in question was with the petitioner and, therefore, petitioner is entitled to the benefit of Repeal Act, 1999.

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Regarding actual physical possession the Supreme Court has very categorically held in State of U.P. Vs. Hari Ram (2013) 4 SCC 280 that in case no physical possession of surplus land was surrendered by tenure holder in pursuance of the notice under Section 10(5) of Act 1976, then there has to be actual physical possession by exercise of force under Section 10(6) of the Act 1976, and for that purpose, a possession memo should be duly executed bearing signatures of witnesses in whose presence possession is taken. Defining “peaceful dispossession” and “forceful dispossession”,

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the Court has found that notices under Section 10(5) and 10(6) are mandatory in nature and the word 'may' that has been used by the Legislature has to be read and understood as 'shall' and in the absence of any such notice, it cannot be said that “forceful dispossession” has taken place.

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Apex Court in paragraphs 33, 34, 36 and 37 of the judgment (supra) with reference to forceful dispossession has observed as under:

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“33. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10. Sub-section (6) to Section 10 again speaks of “possession” which says, if any person refuses or fails to comply with the order made under sub- section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force - as may be necessary - can be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub-section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted only in a situation which falls under sub-section (6) and not under sub-section (5) to Section 10. Subsections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice that is “peaceful dispossession” and on failure to surrender or give delivery of possession under Section 10(5), than “forceful dispossession” under sub-section (6) of Section 10.

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34. Requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word ‘may’ has been used therein, the word ‘may’ in both the sub-sections has to be understood as “shall” because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 10 is that it might result the land holder being dispossessed without notice, therefore, the word ‘may’ has to be read as ‘shall’.

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35. Above reasoning is in consistence with the Directions 1983 which has been issued by the State Government in exercise of powers conferred under Section 35 of the Act. Directions clearly indicate that the procedure for taking possession of the vacant land in excess of the prescribed ceiling limit, which reads as under:

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“In exercise of the powers under Section 35 of the Urban Land (Ceiling and Regulation) Act 1976 (Act No.33 of 1976), the governor is pleased to issue the following directions relating to the powers and duties of the Competent Authority in respect of amount referred to in Section 11 of the aforesaid Act to the person or persons entitled thereto:

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1. Short title, application and Commencement–These directions may be called the Uttar Pradesh Urban Land Ceiling (Taking of Possession Payment of Amount and Allied Matters Directions, 1983)

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2. The provisions contained in this direction shall be subjected to the provisions of any directions or rules or orders issued by the Central Government with such directions or rules or orders.

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3. They shall come into force with effect from the date of publication in the Gazette.

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2. Definitions:-

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3. Procedure for taking possession of vacant Land in excess of Ceiling Limit-(1) The Competent Authority will maintain a register in From No.ULC -1 for each case regarding which notification under sub-section (3) of Section 10 of the Act is published in the Gazette.

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4. (2) an order in Form No.ULC-II will be sent to each land holder as prescribed under sub-section (5) of Section 109 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No.ULC-1.

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3. On possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-

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section (6) of Section 10 of the Act, entries will be made in a register in Form ULC-III and also in Column 9 of the Form No.ULC-1. The Competent Authority shall in token of verification of the entries, put his signatures in column 11 of Form No.ULC-1 and Column 10 of Form No.ULC-III.”

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36. Above-mentioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land.

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The scope of Act 33 of 1976 came up for consideration before this Court on few occasions, reference may be made to certain judgments, even though there has been no elaborate discussion of the provision of the Act and its impact on the Repeal Act. Reference may be made to Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and others (2000) 6 SCC 325, Ghasitey Lal Sahu and Another v. Competent Authority, Under the Urban (Ceiling and Regulation Act, 1976) U.P. and Another (2004) 13 SCC 452, Mukarram Ali Khan Vs. State of U.P. and others (2007) 11 SCC 90 and Vinayak Kashinath Shilkar Vs. Deputy Collector and Competent Aujthority and others (2012) 4 SCC 718. ”

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This Court by order of date passed in Paras Nath Vs.State of U.P. and others (Writ Petition No.33318 of 2015) has taken a similar view .

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In the present case, we may also add that respondents though in counter affidavit pleaded that surplus land vested in State Government with the publication of notification under Section 10(3) of Act, 1976 and thereafter its possession was given to Allahabad Development Authority (hereinafter refereed to 'ADA') and entry was made in revenue record in favour of the State, but we find no document to show that at first instance possession was taken by competent authority under Section 10(5) of Act, 1976 having been delivered by land owner voluntarily or it was taken forcibly by serving notice under Section 10 of Act 1976. With regard to

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ADA also, we find no document on record to show that any actual physical possession of the land in dispute was transferred to ADA at any point of time till enforcement of Act, 1999 and there is no material to show that even after enactment of Act, 1999, de-facto possession over land in dispute is that of ADA. State respondents in fact have deemed possession with the publication of notification under Section 10(3) which does not talk of possession but only vesting of surplus land and with respect to alleged transfer of possession to ADA also, only on paper such transfer has been made but ADA has not got possession over the land in dispute de-facto at any point of time either till enforcement of Act, 1999 or even thereafter. In these facts and circumstances, we find no material on record to contradict the stand taken by petitioner that though in proceedings under Act 1976, land was declared surplus but as a matter of fact, actual physical possession had never been taken by respondents and petitioner is still in actual physical possession thereof.

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Thus, for the reasons stated above and in view of the law laid down in State of U.P. vs. Hare Ram (Supra), we are convinced that this litigation is in fact a forced litigation upon the petitioner who has been subjected to harassment and compelled to approach this Court. Hence, writ petition deserves to be allowed with exemplary costs.

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In the result, writ petition is allowed with costs which is quantified to Rs. 25000/-. We direct that respondents shall not interfere with the peaceful possession of petitioner over land in question and petitioner shall be at liberty to get Revenue Records corrected with regard to land in question as per procedure prescribed in law.

Dated: 6.12.2017

Akn.

Court No. - 34

Case :- WRIT - C No. - 26656 of 2015

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Petitioner :- Bhola Nath Respondent :- State Of U.P. & 2 Others Counsel for Petitioner :- Raj Karan Yadav Counsel for Respondent :- C.S.C., Brijendra Kumar Ojha,S.C.

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

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Allowed with costs.

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For details see our judgment of date passed on separate sheets.

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Dated: 6.12.2017

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Akn.

Bhola Nath v. State of U.P. and 2 Others

Case brief

What is this about?

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Bhola Nath v. State of U.P. and 2 Others

Case brief

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