Allowed

Jawahar Lal Jaiswal v. State of U.P. and Others

Allahabad HC18 Oct 2019WRIC/14817/1998

Case brief

AI extract

What is this about?

Writ petition challenging urban land ceiling proceedings declaring the petitioner's land excess vacant and the dismissal of his appeal and review. Examining the original record, the court found possession was never taken by voluntary surrender or by force, so the ceiling proceedings abated under the Repeal Act, 1999 and the petitioner remains owner.

What did the court decide?

Ceiling proceedings declared abated; land to continue to belong to petitioner; respondents restrained from interfering with or dispossessing petitioner; costs of Rs. 50,000 payable by respondent nos.

Jawahar Lal Jaiswal Vs State of U.P. and Others — Land Acquisition | Allahabad HC (2019)

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A.F.R

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Reserved on: 06.08.2019

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Delivered on: 18.10.2019

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Court No. - 34

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Case :- WRIT - C No. - 14817 of 1998

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Petitioner :- Jawahar Lal Jaiswal Respondent :- State Of U.P. And Others Counsel for Petitioner :- R.K. Awasthi,Ashish Jaiswal,Mansoor Ahmad,Rahul Sripat,Sandeep.Saxena

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Counsel for Respondent :- C.S.C, ,Shashi Prakash Rai

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Hon'ble Sudhir Agarwal,J.

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Hon'ble Rajeev Misra,J.

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(Delivered by Hon'ble Rajeev Misra,J)

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Petitioner Jawahar Lal Jaiswal has filed present writ petition challenging order dated 18.09.1985 passed by respondent no.2, Competent Authority, Urban Land Ceiling, Allahabad in Case No. 452 of 1976 (State Vs. Jawahar Lal), the order dated 14.07.1997 passed by Respondent No.3, District Judge, Allahabad in Urban Ceiling Appeal No.228 of 1994 (Jawahar Lal vs. State of U.P. & another) dismissing appeal filed by Petitioner under Section 33 of Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as Act 1976) and also order dated 23.03.1998 passed by Respondent No.3, District Judge, Allahabad dismissing review application filed by Petitioner against order dated 14.07.1997. Apart from aforesaid, Petitioner has also prayed for issue of appropriate direction to Respondent No.3 to decide appeal filed by Petitioner and further not to give effect to order dated 18.09.1985 and also restrain Respondents from interfering with possession of Petitioner over land in dispute.

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It transpires from record that Petitioner is lease holder of premises No. 4 (Old No.) now premises no. 6 (New No.) Drummond Road, Allahabad.

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Act of 1976, came into force on 17.2.1976. By means of Act 1976, a ceiling limit regarding land which can be held by a Tenure Holder was provided. Section 4 of Act 1976 provided for different ceiling limits in different Urban Agglomerations falling in different categories. Section 6 mandates that every person who is holding land in excess of concerned ceiling limit shall file an statement before competent authority regarding land held by him. After the statement has been filed by Tenure Holder, competent authority under section 6 of Act 1976 after such survey, as it may deem fit to make, shall prepare a draft statement in respect of person who has filed the statement. Thereafter in compliance of section 8 of Act 1976, Competent Authority is required to issue a draft statement to Tenure Holder as regards vacant land held by him in excess of ceiling limit. In turn by virtue of sub section (4) of section 8, Tenure Holder is required to file his objections to draft statement within a period of 30 days from date of service of draft statement/notice under section 8 of Act 1976. After disposal of objections preferred by Tenure Holder, Competent Authority is required to decide the same. Thereafter as per section 9 of Act 1976, Competent Authority is required to prepare final statement determining vacant land held by a Tenure Holder in excess of ceiling limit. Section 9 further provides that final statement shall be served on Tenure Holder as per the procedure provided under section 8 (3) of Act 1976. Section 10 of Act 1976 contemplates that after service of final statement prepared under section 9 of Act 1976, Competent Authority shall cause a notification to be published in Official Gazette of the State concerned regarding land held by such person in excess of ceiling limit. The notification is to further state that such vacant land is to be acquired by concerned State Government and claims of all person interested in such vacant land may be made by them personally or by an Agent giving particulars of the

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nature of their interests in such land. Sub section (2) of section 10 provides for disposal of objections preferred by such person who claims interest in the land proposed to be acquired. Sub section (3) of section 10 contemplates deemed acquisition of excess vacant land of Tenure Holder and vesting of same in the State Government, free from all encumbrances. Sub section (4) of Section 10 puts a rider on the Tenure Holder whose land has been declared as excess vacant land or any other person not to transfer any excess vacant land or part thereof by way of sale, mortgage, gift, lease or otherwise. Sub section (5) of section 10 provides that after the land declared as excess-vacant land has vested in State Government, Competent Authority may by notice in writing order any person who may be in possession of excess-vacant land declared surplus, to surrender or deliver possession thereof to State Government or to any person duly authorised by State Government in this behalf within 30 days from the date of service of notice issued under section 10 (5). Thus, section 10 (5) of Act 1976 contemplates voluntary surrender of possession upon notice by a Tenure Holder. Sub Section (6) of section 10 provides that upon failure to comply with an order made under sub section (5) of section 10 i.e. failure to surrender possession voluntarily, Competent Authority may forcibly take possession of land declared as excess-vacant land. Section 11 of Act 1976, provides for payment of compensation in lieu of land acquired upon declaration as excess-vacant land. Section 12 provides for the constitution of Urban Land Tribunal and an appeal to Urban Land Tribunal against an order passed by Competent Authority under section 11 of Act 1976. Section 33 of Act 1976 provides for an appeal against an order passed by competent authority except an order passed under section 11 or under sub-section (1) of Section 30.

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Accordingly, as per mandate of Act 1976, Petitioner submitted a draft statement dated 30.09.1976 before Respondent No.2, Competent Authority, Urban Land Ceiling, Allahabad, in respect of land held by him. Petitioner also filed an objection dated 30.09.1976 stating therein that no

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part of land held by petitioner can be declared surplus. However, after filing draft statement and objections referred to above, petitioner appears to have abandoned the proceedings pending before respondent no.2, Competent Authority, Urban Land Ceiling, Allahabad. As a result of the aforesaid, respondent no.2, Competent Authority, Urban Land Ceiling, Allahabad passed an ex-parte order dated 26.04.1984 whereby 6181.37 sq. mtrs. of land belong to petitioner was declared, excess vacant land. At this state, one Rajendra Prasad filed an application dated 25.07.1984 praying for recall of order dated 26.04.1984 on the ground that he has interest in land declared as excess vacant land. The aforesaid application dated 25.07.1984 came to be rejected vide order dated 25.07.1984 passed by respondent no.2, Competent Authority, Urban Land Ceiling, Allahabad. Feeling aggrieved by aforesaid orders dated 26.04.1984 and 25.07.1984, petitioner filed an application dated 23.02.1985 praying for recall of ex-parte orders dated 26.04.1984 and 25.07.1984. Subsequently petitioner filed an application dated 06.09.1985 supported by an affidavit purported to be under Order IX Rlue 13 CP.C praying for recall of exparte orders dated 26.04.1984 and 25.07.1984 and also for restoration of case to its original number and status. Respondent No.2, Competent Authority, Urban Land Ceiling, Allahabad, passed order dated 09.09.1985 whereby ex-parte orders dated 26.04.1984 and 25.07.1984 were recalled and Ceiling Case was fixed for 18.09.1985 for objection and evidence. Again, petitioner did not appear before respondent no.2 and consequently, respondent no.2, Competent Authority, Urban Land Ceiling, Allahabad passed order dated 18.09.1985 whereby earlier order dated 25.07.1984 was again affirmed and restored. Consequently respondent no.2, Competent Authority, Urban Land Ceiling, Allahabad issued final statement dated 18.11.1988 whereby 6181.37 sq. mtrs. of land belonging to Petitioner was declared as excess-vacant land. Against order dated 25.07.1984, Petitioner preferred an appeal before Appellate Authority i.e. Respondent No.3, District Judge, Allahabad. Same was registered as

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Appeal No. 228 of 1994 (Jawahar Lal Jaiswal Vs. State of U.P. and another). Respondent No.3, District Judge Allahabad vide order dated 14.07.1991 dismissed appeal filed by Petitioner. Being aggrieved by order dated 14.07.1991 Petitioner filed a review application dated 05.08.1997 in terms of Section 151 C.P.C. before Appellate Authority/respondent no.3. The review application filed by petitioner came to be dismissed as not maintainable vide order dated 23.03.1998 passed by Appellate Authority, i.e., Respondent No.3, District Judge, Allahabad. Being aggrieved by orders dated 18.09.1985, 14.07.1991 and 23.03.1998 referred to above, petitioner has now come to this Court by means of present writ petition.

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Instant writ petition came up for admission on 02.05.1998 and a learned Single Judge passed following interim order:

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“ Sri H. P. Tripathi, learned Standing Counsel prays for and is granted one month time to file counter affidavit. Learned counsel for the petitioners prays for and is granted two weeks time to file rejoinder affidavit. List the petition for final hearing / disposal if possible on 21.07.1998.

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Till further orders of this Court, if the petitioner is still in possession over the plots in dispute, he shall not be dispossessed.”

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(Emphasis added)

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A counter affidavit dated 11.05.2018 was filed on behalf of Respondents Nos. 1 and 2. In paragraph 8 of counter affidavit it has been pleaded that notification under Section 10 (1) was made on 06.05.1989 followed by notification dated 23.02.1991 under Section 10 (3) of Act 1976. It is thus submitted that land of petitioner declared as excess-vacant land got vested in State Government without any encumbrance. Notice under Section 10 (5) of Act 1976 was issued to petitioner on 23.03.1993. In view of Government Order dated 11.12.1996 land of petitioner declared as excess-vacant land is alleged to have been handed over to Respondent No.4, Allahabad Development Authority, Allahabad. In Paragraph 12 of the counter affidavit, it has been averred that a letter dated 17.11.2017 has been written by District Magistrate, Allahabad to the

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State-Government to give instructions for taking action under Section 10 (6) of Act, 1976.

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Writ petition again came up for admission on 18.05.2018 and this time a Division Bench passed the following order:

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“This writ petition remained pending for 20 years and on the last occasion when it came up before this Bench on 04.05.2018, we issued a direction to produce the original record and show cause as to why the counter affidavit had not been filed by the respondent-State till date.

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Today a counter affidavit on behalf of the respondent-State has been filed through the Tehsildar Sadar, Allahabad which makes a very peculiar discloser in paragraph-12 to the effect that the District Magistrate, Allahabad has sent a letter on 17.11.2017 to the State Government to give instructions for taking action under Section 10(6) of the Urban Land Ceiling Act, 1976.

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The written instruction produced by the learned Standing Counsel also indicates that such files where action had not been taken under the provisions of Section 10 (6) of the Act, instructions have been sought from the State Government for taking possession.

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We are surprised at the functioning of the District Magistrate, Allahabad under whose signature such instructions have been dispatched to the learned Standing Counsel, inasmuch as once the Act has been repealed in the year 1999, prima facie we fail to understand as to under which law and provision the District Magistrate has now sought permission from the State Government to take possession.

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The learned Standing Counsel submits that there is a stay order in the present writ petition since in the year 1998, which recites till further orders, if the petitioner is in possession, then he shall not be dispossessed. The writ petition was dismissed for want of prosecution on 23,03.2009 and the interim order was vacated and the petition was restored on 08.04.2009. It was again dismissed in default on 29.06.2009 and was restored on 25.11.2009. It is after almost 9 years when the writ petition came to be listed in the year 2018.

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There is one interesting fact which is disclosed from an abatement application filed by the petitioner himself being application no. 343024 of 2011. In this application it is disclosed that the appeal filed against declaration of surplus by the Prescribed Authority before District Judge was dismissed as the delay condonation application was rejected

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on 14th July, 1997.

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Prior to this, it is not understood as to how the State Government issued a letter on 21.12.1994 for grant of free hold rights over the land in question to the petitioner presumably under the impression that the land was not declared surplus. It is further disclosed in the said affidavit appended to the said application that the petitioner's request for renewal of the lease was recommended by the Prabhari Adhikari (Nazul), Allahabad on 01.03.1995.

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It is in continuity of these proceedings that the appeal of the petitioner had been dismissed by the learned District Judge, where after the present writ petition has been filed and an interim order was passed on 02.05.1998 referred to herein above.

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The petitioner was again put to notice of resumption on 9th September, 2005 against which the petitioner filed Writ Petition No. 76849 of 2005 in which an observation was made through an interim order that in the circumstances, the State Government may take a decision but actual possession will not be disturbed on the spot pursuant to this order till the next date of listing. The said writ petition is stated by the learned counsel for the petitioner to have been dismissed in default.

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We are surprised that the instructions of the District Magistrate, Allahabad which is countersigned by the Authority Urban Land Ceiling, Allahabad, nowhere indicates any of these proceedings and orders referred to herein above.

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We are therefore satisfied that the counter affidavit has been filed in a cavalier fashion and therefore it requires the Court to call upon the District Magistrate to file his personal affidavit in this regard explaining the circumstances in which the instructions have been sought from the State Government and also ensure that the records are produced before this Court by the next date fixed.

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The matter shall come up on 23rd May, 2018. ”

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In the light of facts stated in the counter-affidavit referred to above and observations made by Division Bench, District Magistrate, Allahabad filed his personal affidavit. In paragraph 5 of personal affidavit of District Magistrate, Allahabad, it has been stated that after Repeal Act of 1999 proceedings under Section 10 (6) of the Act of 1976 cannot be undertaken. In respect of letter dated 17.11.2017 sent by District Magistrate, Allahabad to State-Government for seeking instructions to take action

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under Section 10 (6) of Act, 1976, it was stated in paragraph 7 that District-Magistrate Allahabad vide letter dated 17.11.2017 intended to seek instructions/guidelines from State Government in those cases where documents pertaining to voluntary possession transfers are not available and proceedings under Section 10 (6) of Act of 1976 have not been undertaken. In paragraph 10 of the aforesaid affidavit, it is stated that after Repeal Act of 1999, proceedings under Section 10 (6) of Act of 1976 cannot be undertaken. However, in paragraph 15 of aforesaid affidavit, it is stated that possession of excess-vacant land belonging to Petitioner has been given to Allahabad Development Authority and possession of Allahabad Development Authority, Allahabad over land of petitioner declared as excess-vacant land is evident from letters of the Secretary, Allahabad Development Authority, bearing Nos. 16, 17, 18 dated 14.05.2018. Reliance was also placed upon judgement of this Court in Shiv Ram Singh Vs. State of U.P. And others, 2015 (5) AWC 4918 and that of Apex Court in State of Asam Vs. Bhaskar Jyoti Sharma and others, 2015 (5) 321 , in support of the proposition that once possession has been taken, then tenure-holder cannot seek benefit of Repeal Act, 1999. It is immaterial whether such possession has been taken lawfully or not. Since petitioner is not in possession over land declared as excess-vacant land, petitioner is not entitled to the relief prayed for in present writ petition.

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A counter-affidavit dated 10.01.2019 has been filed by Respondent no.4, Allahabad Development Authority, Allahabad. However, in the entire counter-affidavit which is of nine paragraphs, no categorical averment has been made that land of petitioner declared as excess-vacant land has been handed over to Allahabad Development Authority, Allahabad and consequently, aforesaid authority is in possession over the land of Petitioner declared as excess-vacant land under Act, 1976.

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Petitioner has filed rejoinder affidavit categorically denying the averments made in counter-affidavit dated 11.05.2018 filed by State-

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Respondents no. 1 and 2.

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Pursuant to order dated 18.05.2018, the matter came up before the Bench on 23.05.2018 and Bench passed following order:

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“The District Magistrate has filed his personal affidavit today. Learned counsel for the petitioner may file a reply to the same. Further from the affidavit of the District Magistrate we find that instructions were sought from the State Government vide letter dated 17th November, 2017 from the Principal Secretary, Housing and Urban Development, Government of Uttar Pradesh (Anubhag-6) Lucknow.

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Learned Standing Counsel shall directly communicate with the said Principal Secretary calling upon him to inform the Court as to what response has been given by him to the District Magistrate. The District Magistrate may also inform the Court as to what response has been received by him in this regard and appropriate affidavit to that effect shall be filed by the next date fixed.

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List in the next cause list.

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The record of the case shall be produced whenever the matter is listed next.”

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(Emphasis added.)

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In compliance of order dated 23.05.2018, original record has been produced by Miss. Subhash Rathi, Additional Chief Standing Counsel in Court on 06.08.2019.

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We have heard Mr. Mansoor Ahmad, learned counsel for petitioner, Miss. Subhash Rathi, learned Additional Chief Standing Counsel for respondent nos. 1, 2 and 3 and Mr. S. P. Rai, learned counsel representing Respondent No. 4.

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From the facts as noted herein above only two questions arise for determination in this writ petition.

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I. Whether possession of land of petitioner declared as excess-vacant land was ever taken by Prescribed Authority and thereafter transferred to Respondent no.4, Allahabad Development Authority, Allahabad and consequently, the aforesaid authority is in actual physical possession of the same.

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II. Whether Petitioners are entitled to the benefit of Repeal Act of 1999 as possession of land of petitioners declared as excess-vacant land was never taken by District-Magistrate Allahabad under Section 10 (5) or Section 10 (6) of Act of 1976.

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With regard to the first question, we find that there are contradictory pleadings on record. As noted above, District-Magistrate, Allahabad in his personal affidavit dated 23.05.2018 has stated that possession of excess-vacant land of petitioner has been given to Allahabad Development Authority, Allahabad. It has further been stated that possession of Allahabad Development Authority, Allahabad over land of petitioner declared as excess-vacant land is evident from the letters of Secretary, Allahabad Development Authority bearing nos. 16.17 and 18 dated 14.05.2018. However, personal affidavit of District-Magistrate does not mention the date on which possession over land of petitioner declared as excess-vacant land was taken by him nor the same contains a recital whether possession was voluntarily surrendered by petitioners in terms of section 10 (5) of Act of 1976 or it was forcibly taken under Section 10(6) of Act 1976. In the counter affidavit filed by Respondent No.4, Allahabad Development Authority, Allahabad it has nowhere been stated that possession of land of petitioners declared as excess-vacant land, was handed over to Allahabad Development Authority, Allahabad and consequently, they are in possession over the same. Thus, we have no hesitation to hold that in absence of any categorical recital in the personal affidavit of District-Magistrate, Allahabad in the light of facts noted above, possession over land of petitioner declared as excess-vacant land was never taken by voluntary surrender of possession by petitioner in terms of section 10(5) of Act 1976 nor the same was forcibly taken over in terms of section 10(6) of Act 1976 and hence its transfer to Allahabad Development Authority is out of question.

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With regard to second point of determination, it may be stated here

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that this controversy is no longer res-integra and stands concluded by judgement of Apex Court in State of U.P. Vs. Hari Ram, 2013 (4) SCC 280. Court in paragraphs 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 42 has said:

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Let us test the meaning of the expressions "deemed to have been acquired" and "deemed to have been vested absolutely" in the above legal settings. The expressions "acquired" and "vested" are not defined under the Act. Each word, phrase or sentence that we get in a statutory provision, if not defined in the Act, then is to be construed in the light of the general purpose of the Act. As held by this Court in Organo Chemical Industries v. Union of India [(1979) 4 SCC 573 : 1980 SCC (L&S) 92] that a bare mechanical interpretation of the words and application of a legislative intent devoid of concept of purpose will reduce most of the remedial and beneficial legislation to futility. Reference may also be made to the judgment of this Court in Directorate of Enforcement v. Deepak Mahajan [(1994) 3 SCC 440 : 1994 SCC (Cri) 785] . Words and phrases, therefore, occurring in the statute are to be taken not in an isolated or detached manner, they are associated on the context but are read together and construed in the light of the purpose and object of the Act.

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This Court in S. Gopal Reddy v. State of A.P.[(1996) 4 SCC 596 : 1996 SCC (Cri) 792] held: (SCC p. 607, para 12)

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"12. It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary."

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In Jugalkishore Saraf v. Raw Cotton Co. Ltd. [AIR 1955 SC 376] , S.R. Das, J. stated: (AIR p. 381, para 6)

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"6. … The cardinal rule of construction of statutes is to read the statute literally, that is by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the court may adopt the same. But if no such alternative construction is possible, the court must adopt the ordinary rule of literal interpretation."

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The expression "deemed to have been acquired" used as a deeming fiction under sub-section (3) of Section 10 can only mean acquisition of title or acquisition of interests because till that time the land may be either in the ownership of the person who held that vacant land or to possess such land as owner or as a tenant or as mortgagee and so on as defined under Section 2(1) of the Act.

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The word "vested" has not been defined in the Act, so also the word "absolutely". What is vested absolutely is only the land which is deemed to have acquired and nothing more. The word "vest" has different meaning in different context; especially when we examine the meaning of "vesting" on the basis of a statutory hypothesis of a deeming provision which Lord Hoffmann in Customs and Excise Commissioners v.Zielinski Baker and Partners Ltd. [(2004) 1 WLR 707 : (2004) 2 All ER 141 (HL)] , All ER at para 11 described as "heroic piece of deeming".

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The word "vest" or "vesting" has different meanings. Legal Glossary, published by the Official Language (Legislative) Commission, 1970 Edn. at p. 302:

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"Vest.—(1) To give a person a legally fixed, immediate right or personal or future enjoyment of (an estate), to grant, endow, clothe with a particular authority, right of property, (2) To become legally vested; (TP Act)

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Vesting order.—An order under statutory authority whereby property is transferred to and vested, without conveyance in some person or persons;

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26.Black's Law Dictionary (6th Edn.), 1990 at p. 1563:

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"Vested.—Fixed; accrued; settled; absolute; complete. Having the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are 'vested' when right to enjoyment present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not continue 'vested right'. Vaughn v. Nadel [228 Kan 469 : 618 P 2d 778 (1980)] . See also Accrue; Vest, and specific types of vested interests, infra."

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27.Webster's Third New International Dictionary, of the English Language unabridged, Vol. III S to Z at p. 2547 defines the word "vest" as follows:

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"'vest' vest … To place or give into the possession or discretion of some person or authority [the regulation of the waterways … to give to a person a legally fixed immediate right of present or future enjoyment of (as an estate) (a deed that vests a title estate in the grantee and a remainder in his children)

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(b) to grant, endow, or clothe with a particular authority right or property … to put (a person) in possession of land by the feudal ceremony of investiture … to become legally vested (normally) title to real property vests in the holder of a property executed deed.]"

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"Vest"/"vested", therefore, may or may not include "transfer of possession", the meaning of which depends on the context in

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which it has been placed and the interpretation of various other related provisions.

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What is deemed "vesting absolutely" is that "what is deemed to have acquired". In our view, there must be express words of utmost clarity to persuade a court to hold that the legislature intended to divest possession also, since the owners or holders of the vacant land are pitted against a statutory hypothesis. Possession, there is an adage is "nine points of the law". In Beddall v. Maitland[(1881) 17 Ch D 174 : (1881-85) All ER Rep Ext 1812] Sir Edward Fry, while speaking of a statute which makes a forcible entry an indictable offence, stated as follows: (Ch D p. 188)

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"… This statute creates one of the great differences which exist in our law between the being in possession and the being out of possession of land, and which gave rise to the old saying that possession is nine points of the law. The effect of the statute is this, that when a man is in possession he may use force to keep out a trespasser; but, if a trespasser has gained possession, the rightful owner cannot use force to put him out, but must appeal to the law for assistance."

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Vacant land, it may be noted, is not actually acquired but deemed to have been acquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in the hands of a few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as sub-sections (5) and (6) of Section 10, the words "acquired" and "vested" have different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislative intent.

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Voluntary surrender

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The "vesting" in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The Court in Maharaj Singh v.State of U.P. [(1977) 1 SCC 155] , while interpreting Section 117(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 held that "vesting" is a word of slippery import and has many meanings and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The Court in

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Rajendra Kumar v. Kalyan [(2000) 8 SCC 99] held as follows: (SCC p. 114, para 28)

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"28. … We do find some contentious substance in the contextual facts, since vesting shall have to be a 'vesting' certain. 'To "vest", generally means to give a property in.' (Per Brett, L.J. Coverdale v. Charlton [(1878) 4 QBD 104 (CA)] :Stroud's Judicial Dictionary, 5th Edn., Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorisation cannot however but be termed to be a contingent event. To 'vest', cannot be termed to be an executory devise. Be it noted however, that 'vested' does not necessarily and always mean 'vest in possession' but includes 'vest in interest' as well."

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We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act.

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Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under subsection (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land.

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Peaceful dispossession

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Sub-section (5) of Section 10, for the first time, speaks of "possession" which says that where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorised by the State Government.

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If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) of Section 10, there is no necessity of using the expression "where any land is vested" under sub-section (5) of Section 10. Surrendering or transfer of possession under sub-section (3) of Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once

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there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) of Section 10 to surrender or deliver possession. Sub-section (5) of Section 10 visualises a situation of surrendering and delivering possession, peacefully while subsection (6) of Section 10 contemplates a situation of forceful dispossession.

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Forceful dispossession

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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) of 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 subsection (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 to only in a situation which falls under sub-section (6) and not under sub-section (5) of 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), then "forceful dispossession" under sub-section (6) of Section 10.

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The 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 11 is that it might result in the landholder being dispossessed without notice, therefore, the word "may" has to be read as "shall".

¶105

The abovementioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the landowner 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.

¶106

The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18-3-1999. The State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-

¶107

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section (5) of Section 10 or forceful dispossession under subsection (6) of Section 10. On failure to establish any of those situations, the landowner or holder can claim the benefit of Section 4 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 4 of the Repeal Act.”

¶109

However, Mrs. Subhash Rathi, learned Additional Chief Standing Counsel has tried to urge that under Scheme of Act 1976 once vesting has taken place in favour of State-Government under Section 10(3) of Act 1976 then in that event by operation of law State-Government becomes absolute owner of land declared as excess-vacant land free from all encumbrances. In such eventuality question of possession is only symbolic. She further submits that part of land belonging to petitioner was declared as excess-vacant land vide order dated 26.04.1989/18.09.1985 passed by Respondent no.2, Competent Authority, Urban Land Ceiling Allahabad. Against order dated 18.09.1985, petitioner preferred an appeal which was dismissed by Appellate Authority, i.e. Respondent NO.3, District Judge, Allahabad vide order dated 14.07.1997. Against order dated 14.07.1997, Petitioner filed a review application which was also dismissed vide order dated 23.03.1998. Thereafter, the present writ petition was filed. There is nothing on record to show that Petitioner was in actual physical possession over land declared as excess-vacant land from 1989 to 01.05.1998. She further submits that once land declared as excess-vacant land, has vested in State free from all encumbrances, possession if any of petitioner over the land already declared as excessvacant land will be in the nature of adverse possession. It is well settled that plea of adverse possession cannot be pleaded against State. As such, petitioner is not entitled to relief prayed for in the writ petition. Placing reliance upon a Division Bench judgement of this Court in Shiv Ram Singh Vs. State of U.P. And others, 2015 (5) AWC 4918, she submits that irrespective of the fact whether possession has been taken rightfully or wrongfully, it will make no difference. Once petitioner whose land has been declared as excess-vacant, is dispossessed from the same as

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¶111

per personal affidavit of District Magistrate, Allahabad, he cannot claim benefit of section 3 (2) (a) of Repeal Act, 1999. As such petitioner is not entitled to any relief prayed for.

¶112

We have examined the original record to test correctness of submission urged Mrs. Subhash Rathi, learned Additional Chief Standing Counsel. A notice dated 30.09.1993 under Section 10 (5) of Act 1976 was issued to petitioner to hand over peaceful possession of land declared as excess-vacant land. The process server has submitted a report dated 17.12.1993 mentioning therein that original petitioner Jawahar Lal refused to accept notice. There is also no document that thereafter, original petitioner or his heirs have ever handed over possession of land declared as excess-vacant land to District Magistrate, Allahabad, as he alone is competent to take possession of excess-vacant land under Act 1976. As per Division Bench Judgement of this Court in case of Mohammad Suhaif and Another. V/s. State of U.P. And Others, 2019 (5) ADJ 764(DB), it is only District Magistrate who has been authorized to take possession of excess-vacant land as per Rules framed under Act 1976. It is further an admitted position that no proceedings were initiated under Section 10 (6) of Act 1976 as District-Magistrate, Allahabad has himself sent a letter dated 17.11.2017 to the State-Government to give instructions for taking action under Section 10 (6) of Act 1976. Thus inevitable conclusion from aforesaid discussion is that possession of land of petitioners declared as excess-vacant land was never taken either under Section 10 (5) of Act 1976, i.e. voluntarily surrender of possession by tenure-holder or under Section 10 (6) of Act 1976, i.e. forceful possession of land declared as excess-vacant land.

¶113

In view of proved possession of petitioner over his land declared as excess-vacant land, he is clearly entitled to the benefit of Section 3 (a) of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as “Act, 1999”). Accordingly, present writ petition succeeds and is allowed. The ceiling proceedings initiated against petitioner stood

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abated ans so declared. Part of land of petitioner declared as excess vacant land would continue to belong to petitioner. Respondents are restrained from interfering with possession of petitioner over land declared as excess-vacant land and also from dispossessing petitioner from disputed land.

¶116

In the facts and circumstances of the case, petitioner is also entitled to cost which we quantify at Rs. 50,000/- payable by respondent nos. 1 and

¶117

2, within a period of one month from today.

¶118

Order Date :- 18.10.2019 YK

Jawahar Lal Jaiswal v. State of U.P. and Others

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Jawahar Lal Jaiswal v. State of U.P. and Others

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