Rival submissions fall for consideration. In the case of State of Assam v. Bhaskar Jyoti Sharma and others
Case Details
Court No. - 42 Case :- WRIT - C No. - 32781 of 2011 Petitioner :- Udham Singh Respondent :- State Of U.P. Thru Secy. And Others Counsel for Petitioner :- Raj Karan Yadav Counsel for Respondent :- C.S.C. Hon'ble Suneet Kumar,J. Hon'ble Rajendra Kumar-IV,J. 1. Case called out in the revised list. Learned counsel for the petitioner is not present. 2. 3. Heard learned Standing Counsel appearing for the State-respondent. Petitioner by the instant writ petition seeks mandamus, directing the State-respondent not to dispossess the petitioner from the land admeasuring 287.16 square meters, declared surplus from Plot Nos. 584 to 544, which the petitioner claims to be in possession. 4. The stand of the petitioner set up in the pleading is that petitioner filed ceiling return under Section 6(1) of Urban Land Ceiling and Regulation Act, 1976 (for short 'Act'), in respect of the land held by him in Village Phulwariya, District Varanasi. 5. It is not the case of the petitioner that petitioner had filed objections to the draft statement issued under Section 8(3) and followed by order under Section 8(4) of the Act. Consequently, under Section 9, final statement was served to the land owner followed by notifications under Sections 10(1) and 10(3) of the Act, issued on 13 January 1982 and 09 May 1986, respectively. Thereafter, notice came to be issued by the competent authority under Section 10(5) on 31 January 1987, possession of the land was taken over by the competent authority in presence of two witnesses and the land owner on 04 April 1987, as is reflected from the original record produced by the State. The occasion to issue notice under Section 10(6) did not arise. In the circumstances, petitioner would not be 1 of 6 entitled to the benefit of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short ‘Repeal Act’), w.e.f. 18 March 1999. 6. It is nowhere pleaded, nor, it is the case of the petitioner that at any point of time from the stage of Section 8(3) onwards, any protest or
Facts
objection/appeal was filed by the petitioner that the dispossession of the petitioner from the surplus land was not as per the provisions of the Act. On the contrary, the original record produced by the State reflects, otherwise. Petitioner has signed the possession memo in the presence of the witnesses and handedover the possession of the surplus vacant land. 7. 8. Rival submissions fall for consideration. In the case of State of Assam vs. Bhaskar Jyoti Sharma and others1, Hon'ble Supreme Court held as under: “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 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.
Legal Reasoning
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 1. (2015) 5 SCC 321 (Paras-16, 17 and 19) 2 of 6 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 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) 9. The aforesaid judgment of Hon'ble Supreme Court in the case of Bhaskar Jyoti Sharma (supra) has been followed by a coordinate bench of this Court in the case of Shiv Ram Singh vs. State of U.P. and others2
Decision
and the writ petition was dismissed on the ground of laches, observing as under: 2. 2015 (7) ADJ 630 3 of 6 “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) 10. In Shivgonda Anna Patil Vs. State of Maharashtra3 wherein, 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 after ten years, after the excess land was vested in the State Government was rightly summarily dismissed by the High Court. 11. 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 Beig4, 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.