High Court
Case Details
Court No. - 3 Case :- WRIT - C No. - 33794 of 2022 Petitioner :- Kaushlesh Kumar Pandey And Another Respondent :- Collector Prayagraj / Competent Authority Urban Land Ceiling Prayagraj And 3 Others Counsel for Petitioner :- Raj Karan Yadav,Kaushal Kumar Mishra,Poonam Yadav,Yadvendra Kumar Yadav Counsel for Respondent :- C.S.C.,Brijendra Kumar,Pawan Kumar Singh Hon'ble Surya Prakash Kesarwani,J. Hon'ble Anish Kumar Gupta,J.
Legal Reasoning
1. Heard Shri Yadvendra Kumar Yadav, learned counsel for the petitioners and Shri Brijendra Kumar, learned Standing Counsel for the State- respondents. 2. This writ petition has been filed praying for the following relief/s: "A. Issue a writ, order or direction in the nature of Mandamus directing the Respondents to issue correct Parwana/Amaldaramad in correct Pro-Farma for correcting name of Petitioner as well as heirs of Rajendra Prasad @ Shyam Ji Pandey in Case No- K- 2338 of 1976 (State Vs. Rajendra Prasad), situated in Village- Chaka, Post- Naini Dandi, Tehsil-Karchhana, District- Prayagraj. B. Issue a writ, order or direction in the nature of Mandamus directing the Respondents not to interference with peaceful possession of Petitioners situated in Village- Chaka, Post- Naini Dandi, Tehsil- Karchhana, District- Prayagraj."
Decision
3. Briefly stated facts of the present case are that the original tenure holder of the land in question was one Rajendra Prasad @ Shyam Ji, who filed a statement under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act, 1976') as admitted by the petitioners in paragraph no.4 of the writ petition. A notice under Section 8(3) of the Act, 1976 was issued and thereafter a draft statement was finalized and 3994.83 sq. mtrs of land was declared surplus by order dated 08.01.1982 passed under Section 8(4) of the Act, 1976. A notice under Section 10(5) of the Act, 1976 was issued to the petitioners. The name of the State was mutated in revenue records i.e., Khatauni. The disputed land was recorded in the name of the State, as evident from the copy of Khatauni of Khata No.14 'Nagar Bhoomi Seemaropan, Allahabad' since fasli year 1393. The aforesaid copy of Khatauni of the fasli years 1402-1407 was issued by the Lekhpal on 10.07.1996 and copy thereof has been filed as Annexure-4 to the writ petition. The petitioners are the sons of the original tenure holder. These facts clearly reveal that the original tenure holder and the petitioners were 1 always well aware of the fact that the land in question has been declared surplus under the Act, 1976 and the name of the State stood recorded since the year 1393 fasli. Thus, the land in question is recorded in the name of the State in the revenue records from more than three decades. Neither the petitioners nor their father have ever raised any objection with respect to the land in question declared surplus. There is nothing on record to show that the petitioners were in possession over the disputed land either as on the date of Repealing Act, 1999 or as on today. 4. On 14.11.2022, this Court had passed the following order. "Learned counsel for the petitioners prays for and is granted some time to file supplementary affidavit annexing the proof of actual physical possession to the petitioners. Place this case on 06.12.2022 as fresh." 5. Despite the aforequoted order, supplementary affidavit annexing proof of actual physical possession has not been filed by the petitioners. 6. In the case of State of Assam vs. Bhaskar Jyoti Sharma and others, (2015) 5 SCC 321 (Paras-16, 17 and 19), 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. 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 2 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) 7. The aforesaid judgment of Hon'ble Supreme Court in the case of Bhaskar Jyoti Sharma and others (supra) has been followed by a coordinate bench of this court in the case of Shiv Ram Singh vs. State of U.P. and others, 2015 (7) ADJ 630 and 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 3 our view, such a belated challenge should not, in any event, be entertained.” (Emphasis supplied by us) 8. For all the reasons aforestated and also in view of the law laid down by Hon'ble Supreme Court in the case of Bhaskar Jyoti Sharma and others (supra) and a Coordinate Bench decision of this Court in the case of Shiv Ram Singh (supra), we do not find any merit in this writ petition, apart from the fact that it is also hit by laches. 9. Consequently, the writ petition is dismissed. Order Date :- 3.3.2023 Ankit. Digitally signed by :- ANKIT VISHWAKARMA High Court of Judicature at Allahabad 4