Allowed

Shiv Bhan Mishra v. State of U.P. and 4 Others

Allahabad HC6 Dec 2017WRIC/32422/2015

Case brief

AI extract

What is this about?

This court held that ceiling proceedings abated due to the Repeal Act, 1999, as the State failed to obtain physical possession under Section 10(6) of the Urban Land (Ceiling and Regulation) Act 1976. The writ petition was allowed, directing the State not to interfere with the petitioner's possession and permitting correction of revenue records.

What did the court decide?

Writ petition allowed. Reliefs granted: State respondents directed not to interfere with petitioner's possession; liberty granted to correct revenue records.

Shiv Bhan Mishra Vs State of U.P. and 4… — Pension and Retirement Benefits | Allahabad HC (2017)

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Court No. - 34

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Case :- WRIT - C No. - 32422 of 2015 Petitioner :- Shiv Bhan Mishra Respondent :- State Of U.P. & 4 Others Counsel for Petitioner :- S.K. Pal, Sushil Kumar Pal Counsel for Respondent :- C.S.C.

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

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Pursuant to order dated 22.11.2017 22.11.2017 Mr. Suhas L.Y., District Magistrate, Allahabad is present and also produced original record for our perusal. Counter affidavit has also been filed. His further appearance is dispensed with. Sri Ajit Kumar Singh, Advocate has appeared on behalf of respondents.

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We have heard learned counsel for petitioner and learned Standing Counsel.

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Present writ petition has been filed seeking a direction in the nature of mandamus commanding State respondents not to dispossess petitioner and further Revenue records pertaining to land in question be directed to be corrected. Ground for such relief is that although land was declared surplus under Urban Land (Ceiling and Regulation) Act 1976 (hereinafter referred to as “the Act 1976”), but since actual physical possession of land in question continued with petitioner and in the meantime, Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as “the Repeal Act, 1999”) came to be enacted, entire ceiling proceedings in respect of land in question had stood abated. Thus benefit of Repeal Act, 1999 is being sought on the ground that actual physical possession of land in question which was declared surplus under ceiling proceedings, has not been taken by Ceiling Authorities.

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The contention is that no notice under Section 10(6) of Act 1976 was issued for taking actual physical possession of land in question and petitioner had not surrendered possession of land in question voluntarily.

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A counter affidavit has been filed on behalf of respondents-2, 3, 4 and

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5 and the only plea taken therein is that in view of notification dated 20.5.1986, issued under Section 10(3) of Act 1976, land was not only declared surplus but stood vested in the State of U.P. free from all encumbrances. It is further stated in the counter affidavit that after notification under Section 10(3), a notice under Section 10(5) of Act 1976 was also issued on 31.10.1990 which was duly served upon tenure holder, Bachchan, on 28.1.1991 for handing over possession. However, what happened after service of notice under Section 10(5) of Act 1976, in this regard counter affidavit is absolutely silent. It only states that land in question stood transferred to Allahabad Development Authority pursuant to a Government Order dated 11.12.1996.

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We have perused record that was produced in original before this Court. We find that notice under Section 10(5), allegedly served upon land owner, does not record anything with regard to delivery of possession. With respect to 30 days period provided in the notice to voluntarily surrender actual physical possession, there is nothing stated in the counter affidavit that land owner had at any point of time, voluntarily surrendered possession of land in question to competent ceiling authority. Specific averments made in writ petition that possession continued with petitioner has not been controverted. In view of the above facts and circumstances of the case, it can safely be held that petitioner had never voluntarily surrendered possession of land in question to competent authority under Act 1976. In the circumstances, Ceiling Authorities were required to issue notice under Section 10(6) for taking physical possession of land in question by exerting force and all out efforts ought to have made for effecting forceful dispossession of petitioner from the land in question. Authorities were required to execute a possession memo as contemplated under Section 10(6) of Act 1976 for the purpose of taking actual physical possession.

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Regarding actual physical possession, 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 land owner

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pursuant to 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 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”, Court has held that notices under Section 10(5) and 10(6) are mandatory in nature. The word 'may' that has been used by Legislature has to be understood as 'shall' and in absence of any such notice, it cannot be said that “forceful dispossession” has taken place. Apex Court in paragraphs 33, 34, 36 and 37 of the judgment 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

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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

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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 subsection (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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(emphasis added)

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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) decided on 06.12.2017 also taken a similar view .

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In view of the above discussion, we hold that no proceedings have taken place under Section 10(6) of Act 1976 in the present case. Also except notice issued under Section 10(5) of Act 1976, no voluntary surrender of

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possession had taken place at any point of time. In view of this, we have no hesitation in holding that petitioner is entitled to the benefit of Repeal Act 1999. We accordingly hold that ceiling proceedings in respect of land in question stood abated.

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In view of peculiar facts and circumstances, we are convinced that this litigation is in fact a forced litigation upon 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 in respect of land in question in accordance with law.

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Order Date :- 6.12.2017 Akn

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Court No. - 34

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Case :- WRIT - C No. - 32422 of 2015

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Petitioner :- Shiv Bhan Mishra Respondent :- State Of U.P. & 4 Others Counsel for Petitioner :- S.K. Pal,Sushil Kumar Pal Counsel for Respondent :- C.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. Order Date :- 6.12.2017 Akn

Shiv Bhan Mishra v. State of U.P. and 4 Others

Case brief

What is this about?

What did the court decide?

Shiv Bhan Mishra v. State of U.P. and 4 Others

Case brief

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