Court No. - 40
Case :- WRIT - C No. - 58017 of 2005
Petitioner :- Smt. Moola Devi & Others
Respondent :- State Of U.P. Thru' Secy. & Others Counsel for Petitioner :- K.K. Tripathi,Ram Gopal Tripathi Counsel for Respondent :- C.S.C.,A.K. Singh,M.C.Tripathi,Pradeep Kumar Tripathi
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Abhai Kumar,J.
Heard Sri Ravi Kant, learned Senior Counsel and Sri Ram Gopal Tripathi, learned counsel for the petitioners.
The petitioners admittedly are the legal heirs and successors of late Mihi Lal the land holder whose land to the extent involved herein was declared as surplus under the provisions of the Urban Land Ceiling Act, 1976.
The petitioners after the death of Mihi Lal filed this writ petition in the year 2005 contending that since the possession of the land had not been taken over either from the original tenure holder or from the petitioners and they continue to be in actual physical possession, the petitioners were entitled to the benefit of the Urban Land Ceiling Repeal Act No. 15 of 1999 which came into force w.e.f. 18th March, 1999. The contention in shout therefore is that if possession has not been taken, then the petitioners are entitled to the benefit of the Repeal Act and consequently, the claim of the respondent State as well as of the Kanpur Development Authority to retain the land as a surplus under the Ceiling Act, 1976 is without any basis. The land therefore deserves to be treated as the holding of the petitioners and the entries also deserve to be maintained in their favour. The respondent should therefore be restrained from interfering with the possession of the petitioners from the land in dispute.
The respondent-State filed a counter affidavit and the Kanpur Development Authority also filed a counter affidavit to the writ petition. In the affidavit filed on behalf of the State, a photostat copy of the notice under Section 10(5) of the 1976 Act has been filed as annexure no.4 thereto. The same is dated 1st January, 1986. It however, does not mention the date on which the same was sought to be served either on Mihi Lal or any land holder in occupancy of the said land. There is no signature or endorsement of any land holder including Mihi Lal on the said notice to establish that the same was actually served on the land holder. It is also not the case of the respondents that notices were refused to be received inspite of being tendered.
The counter affidavit further brings on record, a memo of possession dated 12th November, 1991 which recites that the Tehsildar, Kanoongo and the other other Revenue Officers of the Ceiling Department went on the spot and gave possession of the land to the Assistant Engineer of the Kanpur Development Authority Sri Tyagi. The said possession memo nowhere indicates that the possession was taken over from the land holder or any other person authorized in this behalf by the land holder. There are no witnesses to the said possession memo except the signatures of the revenue officials before whom the possession is said to have been delivered to the Assistant Engineer of the Kanpur Development Authority. The possession memo dated 12th November, 1991 is after more than five years of the date of the notice under Section 10(5) of the 1976. The area of the plots and the site map have also been appended along with the said possession memo which appears to have been prepared on 06.09.1991.
Another counter affidavit has been filed on behalf of the Kanpur Development Authority dated 06.09.2006, which also reiterates the same position. However, averments have been made in the both the affidavits that proceedings under Section 10(5) and 10(6) had been undertaken.
Two rejoinder affidavits to the aforesaid two counter affidavits have been filed denying the said allegations.
It appears that when the petition was taken up for admission the following interim order was passed on 30th August, 2005 which is extracted hereinunder:-
" Sri A.K. Singh, learned counsel for the respondent no.4 may file counter affidavit within a month. Learned Standing Counsel representing respondents 1 to 30 may also file counter affidavit in the meantime.
Counter affidavit will give specific details regarding taking over of actual possession of the land declared as surplus from the petitioner and also file documentary evidence with regard to the taking over of possession.
In the meantime status quo as on today with regard to the possession on the spot over the land in dispute will be maintained by the parties."
The petition thereafter appears to have come up before the Court in the year 2015, when the Kanpur Development Authority again filed a counter affidavit which is dated 27th September, 2015. In this counter affidavit as well the same stand was taken about having received possession of the land on 12th November, 1991 asserting that the notices had been issued to the land holder under Section 10(5) of the 1976 Act.
In para 14 of the said affidavit, the Kanpur Development Authority relying on two judgments, one of the Apex Court in the case of State of Assam Vs. Bhaskar Jyoti Sarma 2015 (5) SCC 321 and the other in the case of Shiv Ram Singh Vs. State of U.P. and others 2015 (5) AWC 4918 took the plea that in view of the ratio of the aforesaid two decisions, since the possession had been taken over as stated in the affidavits and the possession memo, there was neither any illegality nor any irregularity and this belated petition filed in the year 2005 ought not to be entertained nor the petitioners deserve any relief. It is contended that in view of this belated approach of the petitioners as well once the possession had been handed over to the Kanpur Development Authority which has proceeded to undertake development of the said land, there is no occasion for this Court to cause any interference in the possession which has been lawfully obtained and handed over to the Kanpur Development Authority.
The petitioners have filed a rejoinder affidavit to the same which is dated 26.11.2015 and along with the rejoinder affidavit, the petitioners have filed on record a survey report conducted by the Additional District Magistrate, Finance and Revenue (Competent Authority under the Urban Ceiling Act) dated 20th February, 2015 which categorically records as against the disputed land that it is being actually cultivated. The entry in the said document is in the name of land holder Mihi Lal. On 4th July, 2017, the State again filed an affidavit reasserting the fact of taking over possession on 12th November, 1991 and annexing therewith the Urban Land Ceiling Form Nos. I, II and III in order to substantiate the said plea of possession being maintained in the records of the State.
It may be pointed out that Urban Land Ceiling Form No. III is in relation to the proceedings and the details under Sections 10(3) to 10(5) of the 1976 Act.
A rejoinder affidavit/reply to the said affidavit of the State was filed by the petitioners dated 03.08.2017 again bringing on record the documents pertaining to physical verification of the land and the report of the Additional District Magistrate dated 20.02.2015 referred to hereinabove.
A supplementary counter affidavit was filed by the State through Sri Ashok Kumar Mishra, Junior Engineer of the Urban Land Ceiling Department, where again the aforesaid fact of handing over possession to the Kanpur Development Authority has been asserted and the same survey report that was filed by the petitioners in the affidavit referred to hereinabove dated 20.02.2015 was appended indicating that the land in dispute was being actually cultivated.
Along with the said affidavit the respondent State has filed a copy of the judgment in the case of Suresh Kumar and 3 others vs. State of U.P. and 5 others in Writ Petition No. 37193 of 2017 to contend that such similar matters have been dismissed by the High Court and consequently, this petition also deserves to be dismissed on the same terms.
Two supplementary rejoinder affidavits were filed by the petitioners, one is dated 7th January, 2018 and the other is dated 28th March, 2018. The first affidavit dated 07.01.2018 brings on record the Division Bench judgment in the case of Harnam Singh and 3 others Vs. State of U.P. and 2 others in Writ Petition No. 8436 of 2015 that has held that if the proceedings suffer from patent illegalities of non compliance of the provision of Section 10(5) and 10(6) of the 1976 Act, then in that event, the benefit of the Repeal Act has to be extended to the land holder.
In the affidavit dated 28.03.2018, the petitioners have explained about the status of the occupancy of the land and the claim of the petitioners to the extent of 51.26 sq. mtrs in respect of Plot No. 502 which is also one of the affected plots under the proceedings.
The Kanpur Development Authority then filed a supplementary affidavit on 11th March, 2018 annexing therwith, the judgment in the case of Hari Lal Vs. State of U.P. and another in Writ Petition No. 34323 of 2015 decided on 7th November, 2017, whereby a Division Bench has summarily dismissed the writ petition and another judgment in the case of Radhey Lal Vs. State of U.P dated 20.04.2017 which are on the issue that if the revenue records are containing the entries of the Development Authority then the writ petition would not be maintainable and it is open to the petitioners to approach for correction of records before the appropriate Revenue Authorities.
A supplementary counter affidavit has been filed by the Kanpur Development Authority dated 14.04.2018 in which they have enclosed a layout plan to contend that the land of which possession has been given is part of a scheme/project namely Jawahar Puram Yojna, Kanpur Sector-4. A perusal of the said map indicates that it is only a proposed layout plan.
Simultaneously they have also brought on record the judgment in the case of State of Assam Vs. Bhaskar Jyoti Sarma (supra) on which reliance has been placed as indicated earlier.
Two supplementary rejoinder affidavits have been filed on behalf of the petitioners dated 20.04.2018 and 26.04.2018 again reiterating the facts already stated and also bringing on record Revenue Khasra entries to demonstrate that the land was being actually cultivated and agricultural operations were being carried on as crops have been shown over the said land. This fact is being disputed by the respondent on the ground that this would amount to an encroachment and unlawful occupation of the petitioners and, therefore, any such claim of agricultural activity being carried out would not amount to lawful possession.
The original records pertaining to the Urban Land Ceiling Proceedings have been produced before us and the same has been also perused by us which demonstrates that there is a notice on record in existence said to have been prepared under Section 10(5) of the 1976 Act. On repeatedly raising a query about any proceedings of taking forcible possession of the land in terms of Section 10(6) of 1976 Act, the learned Standing Counsel could not point out towards any document on record or even any statement of fact in any of the affidavits that the proceedings under Section 10(6) had been actually taken. Thus the averments contained in original affidavits of the State and the Kanpur Development Authority about proceedings having been taken under Section 10(6) of the 1976 Act does not appear to be borne out from the original records or any other documents that have been placed before us.
We have heard learned counsel for the parties and upon a perusal of the entire records as narrated above the first question is as to whether the notice under Section 10(5) of the 1976 Act, is in compliance of the provisions and whether it has been actually served on the petitioners or the predecessor in the interest of Mihi Lal or not. As observed above, a copy of the notice under Section 10(5) 1976 Act which is available on record, nowhere indicates any endorsement of receipt by any person. Surprisingly enough, the printed format of the notice on the top records the date 01.01.1986, but it does not bear any endorsement of date below the signatures of the competent authority in spite of the fact that there is a dotted column for the date in the printed format.
In the instant case, the overleaf of the said notice records an endorsement of the handing over of possession to the Kanpur Development Authority on 12.11.1991 which is almost six years, after the date of the issuance of the notice under Section 10(5) of the 1976 Act. It is thus evident that in between this period, no action with regard to taking over of possession had been undertaken nor is there any document available on record to that effect. The same is also evident from the copies of the said notices that were issued to the Tehsildar, Kanpur Nagar for taking possession where also on the overleaf the same endorsement of 1991 exist.
It is thus evident that firstly, there is no evidence of service of notice on the land holders and secondly there is nothing on record to indicate that possession was actually taken over between the said period at least till 1991. It is to be noted that if possession is not delivered voluntarily, forcible possession has to be taken after 30 days of the notice. No such attempt was made as is evident from the facts on record as noted above.
The second question is as to whether the provisions of Section 10(6) were invoked or complied with. There is nothing on record to indicate that firstly, the petitioners had voluntarily refused to hand over the possession and secondly, the respondents had proceeded to take forcible possession as contemplated under Section 10(6). In view of the aforesaid facts and absence of any material on record, there is not even symbolical possession having been taken from the petitioners. In such circumstances, none of the conditions of taking possession has been complied with and this fault of procedure is not a mere irregularity but a patent Illegality. In the aforesaid background, when the procedural irregularity is such that it goes to the root of the matter then in that event, the reliance placed upon by the learned counsel for the State as well as by the Kanpur Development Authority on the case of Bhaskar Jyoti Sarma (supra) and the other judgments is entirely misplaced, inasmuch as, even though paragraph no. 17 of the said judgment does make certain observations but at the same time, the same judgment also clarifies the distinction between a patent illegality and a mere irregularity. In the instance case, illegality is writ large on the records of the case and which we find to be substantiated by the original records that have been produced before us.
Consequently, we are of the considered opinion that neither provisions of Section 10(5) or the provisions of Section 10(6) were in fact invoked against the land holders nor any such proceeding was carried out either in fact or even otherwise on paper. The preparation of the notice under Section 10(5) was mere utilization of printed stationary without any compliance or execution thereof. Form ULC III also does not reflect the correct picture.
In such circumstances, the only inference that can be drawn by us is that the possession of the land had not been taken over and the land holder remained in possession of the land which is supported by relevant revenue extracts that have been relied upon by the petitioners indicating actually cultivated.
At this juncture, we may point out that the mere preparation of proposed plan by the Kanpur Development Authority would not amount to dislodging the claim of the petitioners who are entitled to retain possession in terms of the Repeal Act No. 15 of 1999. The same will have no legal effect, once it is held that the petitioners have a right to retain possession of the land in dispute on the basis of the findings that have been arrived at by us hereinabove.
There is one very surprising feature in this case which is apparent from the affidavit filed by the Kanpur Development Authority captioned as supplementary counter affidavit dated 22nd April, 2018. In the said affidavit, the Kanpur Development Authority has come out with an entirely new case that the land in dispute had been leased out by the Gram Sabha to the land holder Mihi Lal and therefore he was only a lease holder with no rights on the land in dispute. We are surprised at this stand being taken inasmuch as the affidavit further records that once the land had vested in the Gaon Sabha from whom it was transferred to the Nagar Mahapalika under two notifications referred to therein, then in that event the Urban Land Ceiling Act would have no applicability and any proceedings initiated therein would be barred by Section 19 of the 1976. We fail to understand that if this was the position then there was no occasion for the State to have taken a stand for handing over possession of the land in 1991 to the respondent Kanpur Development Authority. The notifications which have been referred to in the said affidavit, in our considered opinion have absolutely no legal impact on the rights of the land holder who was subjected to the Urban Land Ceiling Proceedings and it was his land which was actually declared surplus. The retention of the land by the land holder thereafter which has been established as indicated above, therefore, extends him the benefit of the Repeal Act and the land holder would be entitled to retain the possession of the land accordingly.
The affidavit which has been filed referred to hereinabove, therefore virtually contradicts the own stand taken by the State and reaffirms the stand taken by the petitioners.
For all the reasons stated hereinbefore and after having considered the original records we are of the opinion that the writ petition deserve to be allowed in terms of the judgment of the Apex Court in the case of State of U.P. Vs. Hari Ram 2013 (4) SCC 280 and the Division Bench judgment in the case of Harnam Singh & 3 others. (supra).
The writ petition is accordingly allowed.
It is hereby declared that the land in dispute that was declared surplus, the retention whereof has been claimed by the petitioners, would stand covered by the benefits extended to the land holder in terms of the Repeal Act No. 15 of 1999, and the land holder and his successors would be entitled to retain possession thereof. It is ordered accordingly. The revenue entries will also be corrected by the Revenue Authorities to the same effect.
We may however mention that in the event, the Kanpur Development Authority has proceeded to prepare any layout plan treating the land to be that of the State and validly handed over to the Kanpur Development Authority, then in that event the provisions of Article 300-A would stand attracted and the petitioners would then be entitled to full compensation as per the current legal position.
This part of the directions shall be the responsibility of the District Magistrate to be complied with, in the event, the Kanpur Development Authority furnishes any request for retention of the land.
The original records have been handed to the learned Standing Counsel.
Order Date :- 30.4.2018
M. ARIF