Ankush Pandey v. St at e of Ut t arakhand Ot hers

Mr. Siddhart ha Sah, Advocat e, for t he appellant . Mr. S.K. Nailwal, St anding Counsel, for t he St at e. Mr. Rahul Consul, Advocat e, for t he MDDA. J U D G M E N T H o n ’ b l e M a n o j K u m a r Ti w a r i , J. H o n ’ b l e Su b h a sh Up a d h y a y , J. ( Pe r : H o n ’ b l e M a n o j K u m a r Ti w a r i , J.) This appeal is filed by writ pet it ioner in Writ Pet it ion ( MS) 1819 of 2016. I n t he said writ pet it ion, pet it ioner had sought t he following relief: “ ( i) issue a writ , order or direct ion in t he nat ure of m andam us com m anding t he respondent s not t o int erfere in t he propert y of t he pet it ioner in quest ion in any m anner what soever.”

2. Writ pet it ion was dism issed by learned Single Judge vide j udgm ent dat ed 27.3.2019. Operat ive port ion of t he said j udgm ent is ext ract ed below: dat ed “ 23. The fact rem ains t hat so far as ( 1) t he declarat ion of t he land as surplus is concerned t hat has at t ained t he finalit y by t he j udgm ent procedure under Sub- sect ion ( 5) of Sect ion 10 of t he Act of 1976 was duly followed wit h aft er prior not ice t o t he predecessors owner is est ablished possession order 25.09.1989 ( 3) adm it t edly, t aken over by t he com pet ent aut horit y and handing t he possession was

18.04.1987 ( 2) 1 it upt o t he st age when, over of it t o t he MDDA was m ade even prior t o t he repealm ent of t he Act of 1999 and last ly, if at all, any defence, which could be t aken, it could have been by t he predecessors owner of t he pet it ioner who ought t o have pleaded t he t he Apex Court . proceedings were before Having not done so, at t his st age, when t he pet it ioner claim s his right being purchaser from t he heirs of t he predecessors owner, who were succeeded by virt ue of t he Will execut ed land being declared as surplus in 1997 and t he sam e being, vest ed wit h t he St at e Governm ent and handing over it s possession t o t he MDDA in 1989, no right vest ed wit h t he predecessors owner t o bequeat h t he propert y t o his heirs. Thus, non com pliance of t he direct ions as t he argued by pet it ioner is t oo not accept able by t his Court in t he absence of any such case pleaded by t hem as t heir predecessors at any st age of t he proceedings, regarding non com pliance of direct ion under Sect ion 35 of t he Act . learned counsel in 1993, aft er t he t he

24. Consequent ly, no writ of m andam us as prayed for could be issued for handing over of t he possession of t he land, which has been ult im at ely declared as surplus. Thus, t he Writ Pet it ion fails and is hereby accordingly dism issed.”

3. Mr. Rahul Consul, learned Counsel appearing for MDDA, relied upon a j udgm ent dat ed 13.10.2023, rendered by Hon’ble Suprem e Court in Civil Appeal No. 5721 of 2023, St at e of U.P. & Anr. V. Ehsan & Anr., for cont ending t hat for t he relief claim ed by t he pet it ioner, writ pet it ion would not be m aint ainable. Para 30, 32, 35, 36 and 37 of t he said j udgm ent are reproduced below: “ 30. No doubt , in a writ proceeding bet ween t he St at e and a landholder, t he Court m at erials/ evidence( s) record, det erm ine whet her possession has been t he placed can, 2 t aken or not and while doing so, it m ay draw adverse inference against t he St at e where t he st at ut ory m ode of t aking possession has not been followed [ See St at e of UP vs. Hari Ram ( supra) ] . However, where possession is st at ed t o have been t aken long ago and t here is undue delay on t he part of landholder in approaching t he writ court , infract ion of t he prescribed procedure for t aking possession would not be a det erm ining fact or, inasm uch as, it could be t aken t hat t he person for whose benefit t he procedure exist ed had waived his right t hereunder [ See St at e of Assam vs. Bhaskar Jyot i Sarm a, ( supra) ] . I n such an event , fact um of act ual t he possession would have t o be det erm ined on t he basis of m at erials/ evidence( s) available on record and not m erely by finding fault in t he procedure adopt ed for t aking possession from t he land holder. And if t he writ court finds it difficult t o det erm ine such quest ion, eit her inconclusive insufficient / m at erials/ evidence( s) on record or because oral evidence would also be required t o form a definit e opinion, it m ay relegat e t he writ pet it ioner t o a suit , if t he suit is ot herwise m aint ainable.

32. What is even m ore int erest ing is t hat in t he t hird writ pet it ion t here is no specific st at em ent t hat recit al in t he order, dat ed 27.03.1987, wit h regard t o t aking of possession is incorrect . Though it is st at ed in paragraph 9 of t he writ pet it ion t hat under orders dat ed 26.11.1977 and 27.3.1987 possession was never t aken. I t be not ed t hat possession was not t aken under order dat ed 27.03.1987. Rat her, it is alleged t o have been t aken dat ed t o t hird writ 15.1.1979. Thus, by pet it ion was filed, a vest ing not ificat ion had already been published in t he official gazet t e t he Com pet ent on 15.1.1979. Furt her, 27.03.1987 Aut horit y’s t aken cat egorically st at ed is no possession of st at em ent t hat order dat ed 27.03.1987 bears an incorrect recit al wit h regard t o t aking of possession. For all t he t he writ pet it ion t hat St at e has t here not ificat ion t im e land. Yet , pursuant dat ed t he 3 t he reasons above, in our view, t he High Court ought t o have been circum spect about t he claim of t hat possession was not t aken right up t o t he enforcem ent of t he Repeal Act , 1999. t he original pet it ioner

35. I n view of t he discussion above and having regard t o t he following: ( a) t hat t here was a serious disput e wit h regard t o t aking of possession of t he surplus land; ( b) t hat t here was a delay of about seven years in filing t he first writ pet it ion from t he dat e when possession was allegedly t aken by t he t he vest ing St at e, aft er publicat ion of not ificat ion; docum ent ary t hat ( c) evidence such as a Khasra or Khat auni of t he t aking period bet ween alleged dat e of possession and filing of t he first writ pet it ion was filed by t he original pet it ioner; ( d) t hat in t he earlier t wo rounds of lit igat ion, t he High Court refrained from deciding t he issue of possession of t he surplus land even t hough t hat issue had arisen direct ly bet ween t he part ies; and t he t hat ( e) t aking prescribed st at ut ory procedure possession cannot be t he sole basis t o discard St at e’s claim of possession, when it is st at ed t o have been t aken long before t he dat e t he issue is raised, we are of t he considered view t hat t he High Court should have refrained from deciding t he issue wit h regard t o t aking of act ual possession of t he surplus land prior t o t he cut off dat e specified in t he Repeal Act , 1999. I nst ead, t he writ pet it ioner should have been relegat ed t o a suit . 36. is allowed. The conclusion, im pugned order passed by t he High Court is set aside. The first respondent ’s writ pet it ion is dism issed wit hout prej udice t o his right t o inst it ut e a suit . Part ies t o bear t heir own cost s. t he appeal infract ion of t he I n

37. I t is clarified t hat we have not expressed any binding opinion as t o whet her possession of t he surplus land was t aken by t he St at e before t he cut off dat e as specified in t he Repeal Act , 1999. Observat ions, if any, in t his regard are purely for t he purpose of deciding whet her t he High Court should have 4 ent ert ained t he writ pet it ion or not . Hence, if any suit t he sam e shall be decided on it s own m erit s.” inst it ut ed

4. Mr. Siddhart ha Sah, learned Counsel for t he appellant - writ pet it ioner, aft er perusing t he j udgm ent relied upon by Mr. Consul, sought perm ission t o wit hdraw t he appeal wit h libert y t o approach com pet ent civil court .

5. Accordingly, special appeal is dism issed as wit hdraw wit h libert y t o t he appellant t o approach t he appropriat e forum .

6. I t goes wit hout saying t hat if appellant - writ pet it ioner files civil suit , t he sam e shall be decided independent ly, uninfluenced by any observat ion m ade by us or in t he im pugned j udgm ent . ( Su b h a sh Up a d h y a y , J.) ( M a n o j K u m a r Ti w a r i , J.) 2 5 .6 .2 0 2 5 Pr PRABODH KUMAR DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3a082a00a95aff911a9559743af8f21c50602ff6eae4e61af3aeab198d462503, postalCode=263001, st=UTTARAKHAND, serialNumber=0DC111E8D8CA66E16B940EFDF806ACCC1AB588052DF6FCA58C67F3C91957BE53, cn=PRABODH KUMAR 5