CASE DETAILS v. EHSAN & Anr.

date the issue is raised, this Court is of the considered view that the High Court should have refrained from deciding the issue with regard to taking of actual possession of the surplus land prior to the cut off date specifi ed in the Repeal Act, 1999 – Instead, the writ petitioner should have been relegated to a suit – The impugned order passed by the High Court is set aside – The fi rst respondent’s writ petition is dismissed without prejudice to his right to institute a suit. [Paras 35, 36] LIST OF CITATIONS AND OTHER REFERENCES Indore Development Authority vs. Manoharlal (2020) 8 SCC 129: [2020] 3 SCR 1 – followed. State of U.P. vs. Hari Ram (2013) 4 SCC 280: [2013] 2 SCR 301; Syed Maqbool Ali vs. State of U.P. (2011) 15 SCC 383: [2011] 4 SCR 238; State of Assam vs. Bhaskar Jyoti Sarma & Others (2015) 5 SCC 321: [2014] 14 SCR 1451; Banda Development Authority vs. Moti Lal Agarwal (2011) 5 SCC 394: [2011] 7 SCR 435 – relied on. Raghbir Singh Sehrawat vs. State of Haryana and Others (2012) 1 SCC 792: [2011] 14 SCR 1113; Municipal Council, Ahmednagar and Another vs. Shah Hyder Beig and Others (2000) 2 SCC 48: [1999] 5 Suppl. SCR 197; State of M.P. vs. Ghisilal (2021) SCC Online SC 1098; Competent Authority, Calcutta, Under The Urban Land (Ceiling and Regulation) Act, 1976 and Another vs. David Mantosh and Others (2020) 12 SCC 542: [2019] 4 SCR 331; Saurav Jain and Another vs. A.B.P. Design and Another (2021) SCC Online SC 552 – referred to. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CIVIL APPELLATE JURISDICTION : Civil Appeal No.5721 of 2023. From the Judgment and Order dated 08.10.2018 of the High Court of Judicature at Allahabad in WC No.21009 of 2012. Appearances: Rana Mukhejee, Sr. Adv., Rajeev Kumar Dubey, Ashiwan Mishra, Ms. Chandni Arora, Ms. Oindrilla, Kamlendra Mishra, Advs. for the Appellants. Ankur Yadav, Adv. for the Respondents. STATE OF U.P. & ANR. v. EHSAN & ANR. 907 JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT MANOJ MISRA, J.

This appeal is directed against the judgment and order of the High Court1 dated 08.10.2018, passed in Writ C No. 21009 of 2012, by which the writ petition of the fi rst respondent2 was disposed of by declaring that the land in dispute shall continue to be in possession of the original petitioner and would not be treated as surplus land as he is entitled to the benefi ts of the Urban Land (Ceiling and Regulation) Repeal Act, 19993. In addition to the above, a direction was issued to the Competent Authority (Urban Ceiling) Saharanpur4 to ensure that the name of the original petitioner is restored in the revenue records. Facts/Pleadings

The original petitioner had land holding admeasuring 7499.20 square meter comprising plot nos.166, 177, 179 and 185 in village Panjaura Bairoon, Tehsil and District Saharanpur. With the Urban Land (Ceiling and Regulation) Act, 19765 coming into force, proceedings thereunder were initiated against the original petitioner giving rise to Case No. 2186 of 1976. In these proceedings, vide order dated 26.11.1977, the Competent Authority declared 5499.20 square meter of land as surplus.

The aforesaid order dated 27.11.1977 was questioned before the High Court in the year 1986 through a writ petition, which was dismissed vide order dated 3.1.1986. The order dated 3.1.1986 is reproduced below:

This Writ Petition is against the order of the Competent Authority, Saharanpur dated 26.11.1977- The contention of the Learned counsel for the petitioner is that the impugned order is without jurisdiction and is unenforceable. If the order is unenforceable, the petitioner 1 High Court of Judicature at Allahabad 2 The original petitioner 3 The Repeal Act, 1999 4 The Competent Authority 5 The Ceiling Act, 1976 908 SUPREME COURT REPORTS [2023] 13 S.C.R. can demonstrate before the relevant authority and if that authority decides against the petitioner, the petitioner can approach this Court under Article 226 of the Constitution. At this stage, I am not inclined to interfere with the impugned order. The writ petition is dismissed with the above observation in limine and it would be open to the petitioner to approach this court under Article 226 of the Constitution if his contention is not accepted hereafter. A copy of this order may be given to the petitioner within 24 hours on receipt of usual charges.

Taking advantage of the observations made by the High Court in its order dated 3.1.1986, the original petitioner fi led objections before the Competent Authority, which were rejected, vide order dated 27.03.1987, while observing that, -- (a) 5499.29 square meter of land was declared surplus on 26.11.1977; (b) the notifi cation under Section 10(1) was published on 09.1.1978; (c) the notifi cation under Section 10(3) was made on 15.01.1979, (d) the appeal of the original petitioner before the District Judge was rejected on 12.07.1979; (e) the objection with regard to jurisdiction of the Competent Authority, on the ground that land is agricultural and outside the master plan, is unsustainable because, according to the report, it fell in a residential area within the purview of the Master Plan; (f) the possession of the surplus land had already been taken.

The aforesaid order dated 27.03.1987 was questioned before the High Court through writ petition No.9702 of 1987 wherein, on 20.08.1987, an interim order was passed in the following terms: “Issue Notice. In the meantime, the petitioner shall not be dispossessed from the land declared to be surplus with him.”

The said writ petition remained pending for over a decade and was decided on 28.02.2001, after the Repeal Act, 1999 was notifi ed. The order dated 28.02.2001 is reproduced below:

Heard the learned counsel for the parties. This petition related to the Urban Land (Ceiling and Regulation) Act, 1976 as repealed in 1999. In Pt. Madan Swarup Shrotiya, Public STATE OF U.P. & ANR. v. EHSAN & ANR. (cid:0)MANOJ MISRA, J.(cid:1) 909 Charitable Trust Vs. State of U.P. & others J.T. 2000(3) SC 391 it has been held by the Supreme Court that if the possession has been taken over by the State Government, then the proceedings under the Act will not abate but if the possession has not been taken then the proceeding will abate. We make it clear that the word possession means actual possession (note: some words appear to be missing here) has not been taken over the proceedings shall not abate otherwise they will abate. The petition is disposed of accordingly.

(Note: supplied)

In the year 2012 a third writ petition6 was fi led by the fi rst respondent claiming, inter alia, that actual possession of the surplus land was never taken; he continues to remain in possession of the land and is, therefore, entitled to a declaration that ceiling proceedings qua him stood abated by virtue of Section 4 of the Repeal Act, 1999. The cause of action for fi ling the third writ petition was that, when on 25.10.2012 the original petitioner applied for an extract of the Khatauni (i.e., record of rights) of 1414 to 1419 Fasli, he discovered that name of the State was entered in the records pursuant to a letter dated 20.05.2009. Therefore, to correct the same, the writ petition had to be fi led.

Refuting original petitioner’s case, on behalf of the State and the Competent Authority (i.e., the appellants herein), a counter affi davit was fi led claiming, inter-alia, that,-- (i) the original petitioner had fi led a statement under Section 6(1) of the Ceiling Act, 1976, in pursuance thereof, a draft statement proposing 5499.29 square meter of land as surplus was issued under Section 8(3) on 30.06.1977; (ii) on 26.11.1977 the Competent Authority confi rmed the draft statement; (iii) on 09.01.1978 a notifi cation under Section 10(1) was published, which was followed by publication of a notifi cation under Section 10(3) in the offi cial Gazette on 15.1.1979, thereby vesting the land in the State; (iv) on 27.02.1979 a notice dated 26.02.1979, under Section 10(5), was served on the land holder and, pursuant thereto, physical possession of the surplus land admeasuring 5499.29 square meter was taken on 08.03.1979; (v) the benefi t of the Repeal Act, 1999 is not available to the petitioner. 6 Writ Petition No. 21009 of 2012 910 SUPREME COURT REPORTS [2023] 13 S.C.R. High Court’s Findings

The High Court after considering the pleadings and the materials on record, concluded:

Having considered the submissions raised and applying the law laid down by the Apex Court, it is evident that the notice dated 26.02.1979 under section 10(5) of the Act which is said to have been served on 27.02.1979, as has been alleged in paragraph no. 4 of the counter affi davit, the same has been denied by the petitioner, but even assuming the same to be correct, the actual physical possession alleged to have been taken on 08.03.1979 could not be done as the period of 30 days had not expired. Even otherwise the document which has been fi led as Annexure No. 1 to the counter affi davit is a report and not the actual possession memo. It also records that Bashir, who is the father of the petitioner refused to sign on the proceedings while possession was taken and the petitioner was not present at the time. It is, therefore, clear that this was a sheer paper transaction prepared before the expiry of the statutory period of 30 days and if the petitioner had not handed over voluntary possession, the dispossession could have been possible only by complying with the provisions of section 10(6) of 1970 Act. No such procedure has been followed nor any such evidence is on record. It is therefore evident that the case taken in the counter affi davit of having taken over the actual physical possession is not in conformity with law nor actual possession appears to have been taken.

Before concluding as above, the High Court took notice of various judicial pronouncements including of this Court, namely, (a) State of U.P. vs. Hari Ram7; (b) Raghbir Singh Sehrawat vs. State of Haryana and Others8 and (c) State of Assam vs. Bhaskar Jyoti Sarma & Others9.

We have heard Mr. Rana Mukherjee, learned senior counsel for the appellants and Mr. Ankur Yadav for the fi rst respondent. 7 8 9