High Court · 1999
Case Details
AFR Court No. - 42 Case :- WRIT - C No. - 3175 of 2023 Petitioner :- Rajesh Kumar Gupta And 3 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Krishna Mohan Misra Counsel for Respondent :- C.S.C. Hon'ble Suneet Kumar,J. Hon'ble Rajendra Kumar-IV,J. 1. Heard learned counsel for the Shri H.R. Mishra, learned counsel assisted by Shri Krishna Mohan Mishra, learned counsel for the petitioner and learned Standing Counsel. 2. Petitioners by the instant writ petition seek a direction to the State- respondent/competent authority to release 3,480 square feet of land of arazi (khasra) No. 24, situated in Village-Muhai Sugharpur, Tappa Haveli, Post Haveli, (Parwatia Shivpuri Colony), Tehsil Sadar, District Gorakhpur, declared surplus under the Urban Land (Ceiling & Regulation) Act 1976, (for short ‘Act’), in view of the Repeal Act No. 15 of 1999, w.e.f., 31 March 1999. 3. The facts giving rise to the instant writ petition, as pleaded are that the petitioners are subsequent purchasers of the land declared excess, i.e., arazi khasra No. 24. The original land owner was one Ram Kisun, son of Kodai, duly recorded in the revenue record. 4. It appears the original land owner submitted statement under Section 6(1) of the Act, being case No. 3658, wherein, khasra No. 62 and 85 at Village-Chilmapur; khasra No. 42 and 43 at Village-Mohai Sugharpur, and khasra No. 43 and 44, at Mirzapur, was filed in the return, including the residential building. Upon survey and inspection, a draft statement came to be prepared under Section 8(1) which was duly served upon the land owner on 17 June 1979, by registered post which appears to have return undelivered, consequently, another notice along with the draft statement was issued on 3 June 1981, duly served on the land owner on 25 June 1981. The land owner did not file any objections with respect to the draft statement. The competent authority noted that the name of the original land owner is recorded in khasra No. 24 of Village- Mohai Sugharpur. Similarly, in respect of other plots, the competent authority passed an order under Section 8(4). Thereafter, final statement came to be issued under Section 9 on 24 August 1981. After the stage of Section 9 of the Act, notifications under Section 10(1) was published in the State Gazette on 17 July 1982, followed by notification under Section 10(3) on 28 July 1990. Consequently, the excess vacant land came to vest with the State, including, khasra No. 24. Thereafter, notice came to be issued under Section 10(5) by the competent authority on 19 December 1992. The authorized representative of the competent authority on 3 August 1996, had taken possession of the surplus vacant land from the original land owner. 5.
Decision
In paragraph 6 of the writ petition, it is pleaded that arazi khasra No. 24, came to be transferred to the mother of the petitioner, i.e., Smt. Ahilya Devi, in 1985, by registered sale-deed. It is alleged that the name of the Ahilya Devi, came to be mutated in the revenue record, it is claimed that since then petitioners are in possession and have constructed their residential house. It is further submitted that the mother of the petitioner died in 2020, thereafter, petitioners approached the Nagar Mahapalika, Gorakhpur, to get their names mutated in the revenue record. However, since the land in question which originally belonged to Ram Kisun, was declared surplus and vested in the State Government vide notification dated 28 July 1990, it appears that the name of the petitioner was not mutated. 6. Aggrieved, petitioners approached the District Magistrate, Gorakhpur, claiming to be owner in possession of the disputed land over which residential house was constructed in 1985, after purchasing the plot from a Housing Society in the name and style Parvati Housing Co- 2 of 9 operative Society Limited. In the representation, petitioner sought release of the property from the ceiling proceedings. 7. In this factual backdrop, it is submitted that in view of Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short ‘Repeal Act’), which came into effect on 18 March 1999, the land and property of the petitioner be released. 8. Learned counsel for the petitioner submits that petitioner is in possession of the plots even after repeal of the principal Act. It is urged that at this stage, petitioner cannot be dispossessed from the land declared surplus. Reliance has been placed on the decisions rendered by Supreme Court in State of U.P. Vs. Hari Ram1, as well as, decisions rendered by this Court in Ram Singh Vs. State of U.P. and Others2, Ikrar & Others Vs. State of U.P. and Others3 and State of U.P. Vs. Jagdish Chandra4. 9. It is not the case of the petitioner that the original land owner at any stage had protested with the declaration of surplus land or had objected before the authorities with regard to dispossession not being in accordance with the law. 10. In State of Assam vs. Bhaskar Jyoti Sharma and others5, the Supreme Court was of the view that any grievance based on Section 10(5) ought to have been made within a reasonable time of dispossession and the land owner in not doing so must be deemed to have waived his right under Section 10(5) of the Act. Paragraph 16, 17, and 19 is extracted: “16. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not 2013 (120) RD 241 2020 (147) RD 1 2020 (2) AWC 1288 2014 (1) AWC 864 1 2 3 4 5. (2015) 5 SCC 321 (Paras-16, 17 and 19) 3 of 9 do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure. 17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram's case (supra). That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram's case (supra) considering whether the word 'may' appearing in Section 10(5)gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5)and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of law did not fall for consideration in that case. In our opinion, what Section 10(5)prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because Bhabadeb Sarma-erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so. 19. In support of the contention that the respondents are even today in actual physical possession of the land in question reliance is placed upon certain electricity bills and bills paid for the telephone connection that stood in the name of one Mr. Sanatan Baishya. It was contended that said Mr. Sanatan Baishya was none other than the caretaker of the property of the respondents. There is, however, nothing on record to substantiate that assertion. The telephone bills and electricity bills also relate to the period from 2001 onwards only. There is nothing on record before us nor was anything placed before the High Court to suggest that between 7th December, 1991 till the date the land in question was allotted to GMDA in December, 2003 the owner or his legal heirs after his demise had continued to be in possession. All that we have is rival claims of the parties based on affidavits in support thereof. We repeatedly asked learned counsel for the parties whether they can, upon remand on the analogy of the decision in the case of Gyanaba Dilavarsinh Jadega (supra), adduce any documentary evidence that would enable the High Court to record a finding in regard to actual possession. They were unable to point out or refer to any such evidence. That being so the question 4 of 9 whether actual physical possession was taken over remains a seriously disputed question of fact which is not amenable to a satisfactory determination by the High Court in proceedings under Article 226 of the Constitution no matter the High Court may in its discretion in certain situations upon such determination. Remand to the High Court to have a finding on the question of dispossession, therefore, does not appear to us to be a viable solution.” (Emphasis supplied by us) 11. In Bhaskar Jyoti Sharma (supra) followed by a coordinate Bench of this Court in Shiv Ram Singh vs. State of U.P. and others6, the writ petition was dismissed on the ground of laches, observing as under: “We must also advert to another aspect of the matter particularly having regard to the recent decision of the Supreme Court in Bhaskar Jyoti Sarma (supra). The petitioner moved the first writ petition in 2002 nearly three years after the Repeal Act had come into force. After the earlier writ petition was disposed of by directing the District Magistrate to pass an order on the representation of the petitioner, an order was passed by the District Magistrate on 10 May 2007. The petitioner thereafter waited for a period of over two years until the present writ petition was filed in July 2009. If the petitioner had been dispossessed of the land without due notice under Section 10(5), such a grievance could have been raised at the relevant time. As a matter of fact, it has been the case of the State all along that a notice under Section 10(5) was, in fact, issued in the present case which would be borne out from the original file which has been produced before the Court. The issue is whether such a grievance could be made long after, before the Court. The petitioner had waited for nearly three years after the Repeal Act came into force to file the first writ petition and thereafter for a period of over two years after the disposal of the representation despite the finding of the District Magistrate that possession was taken over on 25 June 1993. In our view, such a belated challenge should not, in any event, be entertained.” (Emphasis supplied by us) 12. In Shivgonda Anna Patil Vs. State of Maharashtra, 7wherein, the Supreme Court while dealing with Section 10 of the Act held that the writ petition under Article 226 for reopening the proceeding on the ground that the competent authority had not taken into consideration certain fact, filed 6. 2015 (7) ADJ 630 7. (1999) 3 SCC 5 5 of 9 after ten years, after the excess land was vested in the State Government was rightly summarily dismissed by the High Court. 13. While deciding the question of delay and laches in preferring the petition under Article 226, the Supreme Court in Municipal Council, Ahmednagar Vs. Shah Hyder Beig8, held that the equitable doctrine, namely, “delay defeats equity” has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-by to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law. 14. Recently, in Kapilaben Ambalal Patel and Others Vs. State of Gujarat9, Supreme Court declined to accept the pleas setup by the legal heirs/representatives of the original land holder on the ground of inordinate delay. The Court noted the submission of the land owner: “Feeling aggrieved, the landowners have approached this Court. It is urged that there is no tittle of evidence to substantiate the fact asserted by the respondent State that physical possession of the land in question has been taken over on 20-3-1986. It was merely a paper-possession in the form of possession panchnama. According to the appellants, de facto possession of the subject land as on the date of the Repeal Act is crucial and entails in abatement of all the actions of the State authorities under the 1976 Act. Mere issuance of notification under Section 10(3) of the 1976 Act regarding deemed vesting of the land in the State is not enough for the purposes of the Repeal Act. Reliance has been placed on Vinayak Kashinath Shilkar Vs. Collector & Competent Authority, (2012) 4 SCC 718, State of U.P. Vs. Hari Ram (2013) 4 SCC 280, Gajanan Kamlya Patil vs. Additional Collector & Competent Authority (ULC) (2014) 12 SCC 523 and Mangalsen Vs. State of U.P. (2014) 15 SCC 332. The consistent view of this Court is that physical possession must be taken by the State authorities, failing which the proceedings shall abate on account of the Repeal Act. The appellants have relied on revenue records to show that the continued possession remained with the appellants/landowners even after the possession panchnama was made on 20-3-1986. The revenue entries have presumptive value and the respondent State had failed to rebut the same.”