Allowed

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

Allahabad HC6 Dec 2017WRIC/33318/2015

Case brief

AI extract

What is this about?

Court held that because actual physical possession of the land was never taken by the state authorities under Section 10(6) of the Urban Land (Ceiling and Regulation) Act, 1976, the proceedings abated under the Urban Land (Ceiling and Regulation) Repeal Act, 1999. The petitioner is entitled to retain possession.

What did the court decide?

Partners restrained from interfering with petitioner's possession; petitioner allowed to seek correction in revenue records

Paras Nath Vs State of U.P. and 2 Others — Property and Title | Allahabad HC (2017)

AFR

Court No. - 34

Case :- WRIT - C No. - 33318 of 2015

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

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

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Heard Sri Raj Karan Yadav, learned counsel for petitioner and learned Standing Counsel for respondents.

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Grievance raised in present writ petition is that inspite of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as the “Repeal Act, 1999”) respondents are interfering with possession of petitioner over land which was earlier declared surplus under the provisions of Urban Land (Ceiling & Regulation ) Act, 1976 (hereinafter referred to as the “Act, 1976”), as if benefit of Repeal Act, 1999 cannot be given to petitioner and land stood vested with State.

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Contention of learned counsel for petitioner is that although land in dispute was declared as surplus under Act, 1976 but actual physical possession of land was not taken and, therefore, in the light of Section 3 of Repeal Act, 1999, proceedings under Act, 1976 stood abated. Relevant paragraphs of the writ petition with regard to averments about actual physical possession over land in dispute and proceedings under Sections 10(5) and 10(6) of Act, 1976 are quoted hereunder:

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“3. That father of petitioner filed a ceiling return/ statement under section 6(1) which is numbered as case no.-K 3376/1976 (State Vs. Lalji) Village and Post Dandi Tehsil Karchhana District Allahabad after that, without service of notice under section 8(3) illegally, order passed under section 8(4) has been passed on 3.8.1986 declaring illegally land of the petitioner as Ceiling land

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and thereafter illegally notice under section 10(5) prepared on 25.5.1990 which was not served on land holder and further proceeding has been held and respondents have not taken actual physical possession from the land holder and land holder is in actual physical possession over the land continuously from 1976 till the date the father of petitioner died leaving behind Paras Nath and Reghurai as sons and legal heirs. For kind perusal and consideration of this Hon'ble Court a typed and photocopy of the notice under section 10(5) dated 5.5.1990 and Khatauni are being filed herewith and marked as Annexure No. 1 and 2 to this writ petition.

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4. That the petitioner is in actual physical possession over the land respondents never taken possession under section 10(6) and land holder never surrender the land in favour of respondents.

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5. That it is specifically pointed out here that on the basis of illegal and without jurisdiction order under Section 8(4) of the Act, competent authority proceeding 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(5).

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6. That the land holder has not surrendered the land to State, and State has not taken actual physical possession form land holder as provided under Section 10(5) 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 that possession only on

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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(5) and 10(6), possession proceeding is quite different in urban land ceiling law.”

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In reply to aforesaid pleadings as raised in writ petition respondents have filed a counter affidavit sworn by one Sri Sushil Kumar Yadav, Tehsildar, Karchhana, Allahabad in which plea has been taken that ceiling proceedings as contemplated under Act, 1976 in respect of land in question has come to its logical end and notices under Section 10(5) of Act, 1976 have been issued to tenure holder on 25.05.1990 for handing over possession of land declared as surplus. It is also contended that in view of Section 10(3) of Act, 1976 land stood vested with State for all practical purposes and consequently it stood transferred to Allahabad Development Authority pursuant to one Government Order dated 11.12.1996. Relevant paragraph of counter affidavit in this regard is para 6 which reads as under:

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“6. That the contents of paragraph 3 of the writ petition are not admitted and in reply thereto, it is most respectfully submitted that the tenure holder, namely, Ram Lalji son of Munai in respect of his landed property/ holding, has submitted a return No. 3376/76 under section 6(1) of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “Act”), in pursuance of which a survey was got conducted and thereafter, a notice under section 8(3) of the Act alongwith statement, was issued to the tenure holder on 14.4.1981 which was personally served upon him on 28.4.1981 whereby land in question was proposed to be declared as surplus vacant land by giving benefit of 1000 sq. mtrs. Land towards the building but despite of service of the said notice, no objection whatsoever has been filed by the tenure holder within prescribed period of 30 days, and as such the prescribed authority by affirming

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the notice under section 8(3), has passed an order on 3.8.1984 under section 8(4) of the Act by which 9492.04 sq. mtrs. Land was declared as surplus vacant land. Thereafter, a final statement was issued to the tenure upon which he filed an objection dated 8.6.1983 upon which the matter was reconsidered and ultimately order passed under section 8(4) of the Act was cancelled/ set aside and the tenure holder was given another opportunity of hearing and to produce relevant evidence in support of his case but neither the tenure holder nor any of his representative turned up on the date fixed in the matter and as such the competent authority has passed the order on 3.8.1984 whereby 9492.04 sq. mtrs. land was declared to be surplus vacant land. Thereafter, a final draft statement under section 9 of the Act was issued on 8.2.1985 which was duly served upon the tenure holder on 15.2.1985. Thereafter, a notification under section 10(1) of the Act was issued which was published in official gazette on 1.3.1986. After publication of notification under section 10(1) of the Act, notification under section 10(3) of the Act was also issued which was published in official gazette on 13.9.1986 and since this date, the land in question declared surplus, had been vested with the State Government free from all encumbrances and the name of the State Govt./ Urban Ceiling has also been recorded in revenue record. After publication of notification under section 10(3) of the Act, a directive notice under section 10(5) of the Act was issued to the tenure holder on 25.5.1990 for handing over the possession of the land in question to the officials of District Magistrate. It is relevant to mention here that he land in dispute declared surplus in ceiling proceeding and vested with the State Government, has been transferred to the Allahabad Development Authority, Allahabad pursuant to the Government Order dated 11.12.1996. In this way, it is evident that entire proceeding has been got done before enforcement of Repeal Act-1999

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i.e. before 18.3.1999 in which the land in dispute declared as surplus vacant land has been vested with the State Government under the provisions of Principle/Original Act of 1976.”

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From perusal of entire counter affidavit and paragraph quoted above we find that there is no proceeding under Section 10(6) of Act, 1976. Document that has been filed as Annexure-2 to the counter affidavit is a notice under Section 10(5) of Act, 1976 which requires tenure holder to surrender possession of land declared surplus. However, it does not note anywhere that any voluntary surrender of land was made by tenure holder. There is neither any note nor, acknowledgment to above effect. In law, in case if voluntary surrender is not done of land by tenure holder in spite of service of notice under Section 10(5), it was incumbent upon ceiling authorities to have proceeded under Section 10(6) of Act, 1976 but neither any averments made in counter affidavit in reply to pleadings made in writ petition show that any notice under Section 10(6) was issued nor, any possession memo has been filed evidencing the factum of delivery of possession per force by ceiling authorities so as to bring entire ceiling proceedings to its logical end. Since no actual physical possession of land in question has been taken in present case and in the meanwhile Repeal Act, 1999 came to be enacted by State Legislature, entire ceiling proceedings stood abated under Repeal Act, 1999 and tenure holder is entitled to retain his title and possession over land in question.

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Law regarding vesting of land with State by virtue of a legal fiction created under Section 10(3) of Act, 1976 came to be considered by a large number of decision of Supreme Court and it has been held that vesting as contemplated under Section 10(3) of Act, 1976 would not amount to actual physical possession for the purposes of invoking provisions of Sections 3 and 4 of Repeal Act, 1999.

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A Division Bench of this Court in Kedar Nath Vs. State of U.P.

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and others (Writ C No. 14642 of 2015), decided on 06.11.2017 has categorically held that actual physical possession means possession taken under Section 10(6) of Act, 1976 in case there is no voluntary surrender of land under Section 10(5) of Act, 1976. Actual physical possession is always to be evidenced by executing possession memo on spot with participation of witnesses to this delivery of possession and putting their signatures on said document.

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In the present case, we may also add that respondents though in counter affidavit had pleaded that surplus land vested in State Government with publication of notification dated 13.01.1996 under Section 10(3) of Act, 1976 and thereafter its possession was given to Allahabad Development Authority (hereinafter referred to as the “ADA”) and entry was made in Revenue Record in favour of State. Here also we find no document to show that at the first instance possession was taken by Competent Authority under Act, 1976, having been delivered by land owner voluntarily or it was taken forcibly. With regard to ADA also, we find no document that any actual physical possession of land in dispute was transferred to ADA at any point of time till enforcement of Act, 1999. There is no material or pleadings 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 publication of notification under Section 10(3) but it does not talk of actual physical possession but only of vesting. 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 land in dispute de facto at any point of time either till enforcement of Act, 1999 or even thereafter. In the facts and circumstances, we find no material on record to contradict the stand taken by petitioner that though vide proceedings under Act, 1976 land was declared surplus but as a matter of fact, actual physical possession has never been taken by respondents and petitioner is still in actual physical possession thereof.

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Applying above law, we find in the instant case that after service of notice under Section 10(5) of Act, 1976 no further action has been taken by ceiling/ revenue authorities. Therefore, we are bound to held that petitioner continued to be in possession over land in question on the date when Repeal Act, 1999 came into force. Thus, ceiling proceedings in respect of land in question stood abated under Repeal Act, 1999 and respondents are hereby restrained from interfering with possession of petitioner over land in question in any manner whatsoever. Petitioner is always at liberty to seek appropriate correction in relevant revenue record.

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

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Order Date :- 6.12.2017 AK

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Court No. - 34

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Impleadment Application No. 164600 of 2016

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Case :- WRIT - C No. - 33318 of 2015

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

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Hon'ble Sudhir Agarwal,J.

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Hon'ble Ajit Kumar,J.

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Called in revised. None appeared to press this application. 2. Dismissed for want of prosecution.

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Order Date :- 6.12.2017 AK

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

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

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