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2018 Supreme(All) 1273
IN THE HIGH COURT OF ALLAHABAD
Amreshwar Pratap Sahi, Shashi Kant, JJ.
Rati Ram - Petitioner
Vs.
State of U.P. & Others - Respondents
Writ C No. 9803 of 2001
Decided On : 03-05-2018
Advocate Appeared:
For the Petitioner: Uma Kant Mishra, A.K. Mishra, Anjani Kumar Mishra, Chetan Chatterjee, Madhusudan Dikshit, V. Nath, Varchasva Bajpai
For the Respondents: A.K. Mishra, V.K. Mishra
The judgment establishes the importance of following statutory procedures and proper documentation for the possession of land, emphasizing the necessity of compliance with the prescribed procedure for taking physical possession.
Headnote:
Repeal Act - Land Dispute - Section 10(5), Section 10(6) - Urban Land Ceiling Act, 1976 - Repeal Act No. 15 of 1999 - The court discussed the provisions of Section 10(5) and Section 10(6) of the Urban Land Ceiling Act, 1976, and the implications of the Repeal Act No. 15 of 1999. The court emphasized the necessity of following the prescribed procedure for taking physical possession of land and highlighted the lack of evidence to support the valid taking over of possession. The judgment relied on the legal principles established in the case of Mohd. Islam and Others Vs. State of U.P. and Others, emphasizing the requirement of proper documentation and compliance with statutory procedures for possession of land.
Fact of the Case:
The petitioner claimed that the land declared surplus was under appeal under the Urban Land Ceiling Act, 1976, and the Repeal Act came into effect during the pendency of the appeal. The petitioner sought to retain the land under the Repeal Act, alleging that the possession was not validly taken over by the authorities.
Finding of the Court:
The court found that the physical possession of the land had not been taken in accordance with the prescribed procedure, and the petitioner was entitled to retain the disputed land under the Repeal Act No. 15 of 1999. The court also noted the lack of evidence supporting the transfer of the property to another authority.
Issues: Validity of possession under the Urban Land Ceiling Act, 1976 and the Repeal Act No. 15 of 1999, and the entitlement of the petitioner to retain the disputed land.
Ratio Decidendi: The court emphasized the necessity of following the prescribed procedure for taking physical possession of land and highlighted the lack of evidence to support the valid taking over of possession. The judgment relied on the legal principles established in the case of Mohd. Islam and Others Vs. State of U.P. and Others, emphasizing the requirement of proper documentation and compliance with statutory procedures for possession of land.
Final Decision: The writ petition was allowed, and the petitioner was declared entitled to retain the disputed land, which shall not be treated as surplus. Any consequential action taken by the State for either retaining the land or handing it over to any other body was annulled, and the respondents were directed to correct the revenue entries in favor of the petitioner.
Heard learned counsel for the petitioner and learned Standing Counsel appearing for respondent nos. 1 and 2.
2. It seems that on an earlier occasion the State was called upon to get with itself the records available in order to assist the Court as no supporting document had been filed alongwith the counter affidavit to establish that the possession had been taken over from the petitioner. However, learned Standing Counsel submits that he has a copy of the notice under Section 10(5) with him. Learned counsel for the petitioner has produced a certified copy of the notice under Section 10(5) as also of the possession memo which has been made the basis to claim that the possession was taken from the petitioner on 29th October, 1992. Since certified copies are before the Court same can be taken cognizance of.
3. Contention of the petitioner is that the disputed land of the petitioner, came to be declared surplus against which an appeal had been filed under the Urban Land Ceiling Act, 1976 that was pending. It is during the pendency of the appeal that the Repeal Act came into effect on 20th March, 1999. The appeal stood abated and thereafter the petitioner proceeded for retention of the land in terms of the Repeal Act. It is urged that the learned District Judge, Saharanpur wrongly held that since the Act has been repealed therefore the appeal was liable to be rejected, but to the contrary the appeal could have been abated and not rejected. Prayer has been made to quash the District Judge's order dated 04.01.2001 as also the order whereby the land was declared surplus.
4. A separate prayer has been made for the issuance of suitable writ to restrain the respondents from giving effect to the order declaring the land to be surplus on the ground that the petitioner continued in actual physical possession of the land as on the date of enforcement of the Repeal Act No. 15 of 1999.
5. A counter affidavit has been filed by the State and it has been alleged therein that the notice under Section 10(5) was issued and possession was taken. There is no indication that physical possession was taken under Section 10(6) of the Act.
6. We have considered the submissions raised and upon a perusal of the certified copy of the notice under Section 10(5), it is evident that the notice is dated 29th October, 1987. There is no indication of any receipt by the land holder/petitioner or any other person nor is there any endorsement to that effect in the notice. It appears that the notice was prepared and it is quite possible that it remained a useful piece of stationary for the respondent without being supplemented by any actual execution thereof.
7. Not only this the possession memo dated 29th October, 1992 was prepared after five years of the issuance of the notice under Section 10(5). There is no explanation in the counter affidavit that if the possession had been resorted to upon issuance of the notice in 1987, even if there was no response, whether any steps were taken within thirty days to ensure compliance under Section 10(6). In the absence of any such material there is no occasion for this Court to presume that possession was either voluntarily delivered by the petitioner or forcibly taken by the respondents. The possession memo nowhere discloses as to how the petitioner delivered possession nor the same is witnessed by any one. One ceiling official is alleged to have handed over possession to another revenue official.
8. The question of taking over possession after five years of the notice without there being any supporting document therefore does not appear to arise and the claim of the petitioner that he continued in actual physical possession appears to have substance. It is substantiated by facts stated in the rejoinder affidavit filed by the petitioner bringing on record relevant revenue statements to indicate physical possession and sowing of crops as late as in the year 2005 (1412 Fasli). In such circumstances in the absence of any mater
