State Of U.P And Another v. Nek Singh

Prakash Chandra Verma and Ram Autar Singh, JJ.:— The short question involved in these writ petitions, as set out in their Ground Nos. A to F is—Whether an appeal would lie under section 33 of the Urban Land (Ceiling and Regulation) Act, 1976 (“the U.L.C.R Act”) in respect of the orders passed prior to the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (“the Repealing Act”), and where the possession pursuant to such orders was also taken prior to the enforcement of the Repealing Act? This legal issue, in fact, is no more res integra.

2. The brief facts on record are: One Dhan Singh filed his statement under section 6(1) of the U.L.C.R Act on 15.9.1976 in the Office of the Competent Authority (CA) which was registered as Ceiling Case No. 4838/2535/1976–77, State v. Dhan Singh. Pursuant thereto, the CA prepared a notice along with a draft statement under section 8(3) of the Act on 14.6.1979, proposing 7137.9414 sq. mtrs. of land of Village Chamrauli as the excess vacant land for the acquisition, but he did not send them by Regd. Post as per Rule 5(2) of the Rules framed under the U.L.C.R Act. Instead, the process-servers allegedly personally went to serve Dhan Singh on 16.7.1979 and as per their reports, the notice was refused by Dhan Singh. Their said reports did not mention that the draft statement was either tendered to or refused by Dhan Singh, though its service was also sine quo non under section 8(3) of the U.L.C.R Act. An ex parte order dated 8.5.1980 was passed by the CA (Annexure-3 to the WP). Nek Singh (the respondent) was, thereafter, born on 15.7.1983 as the second son of said Dhan Singh. The notification under section 10(3) of the Act was issued by the C.A on 31.3.1984 (Annexure-5 to the WP). Unfortunately, Dhan Singh expired on 31.5.1984 leaving behind his two minor sons, namely, Pooran Singh aged 12 years and Nek Singh (respondent) aged about 1 year. The CA then purportedly passed the order under section 10(5) of the U.L.C.R Act on 19.12.1985 (Annexure-6 to the WP), requiring deceased Dhan Singh to deliver possession to the Collector or his authorised representative “within a period of 30 days from the date of its receipt”. The process-server, when went on 9.1.1986 to serve it upon Dhan Singh, found him to have already died. The Tehsil Officials pursuant to this order dated 19.12.1985 allegedly transferred the possession on 23.1.1986 to the State Government (Annexure-6 to the WP). Nek Singh attained his majority on 15.7.2001 It is also not in dispute that the order dt. 8.5.1980 (order under section 8(4)) and 19.12.1985 (order under section 10(5)) passed by the CA were never communicated to Nek Singh or Dhan Singh. When Nek Singh came to know about the said orders on 19.9.2006, he immediately filed two appeals against them, being Misc. (Ceiling) Appeal Nos. 86 and 87 of 2006, before the Appellate Authority/District Judge, Agra under section 33 of the U.L.C.R Act. Both of these appeals were allowed by the Appellate Authority by its reasoned orders dated 4.11.2008 Feeling aggrieved, the petitioners have filed these writ petitions against them with gross and unexplained delay of about 200 days. In these petitions, the only limited question raised by the petitioners is that the aforesaid appeals were not maintainable because the U.L.C.R Act stood repealed by the Repealing Act. The petitioners have not assailed any finding of the appellate orders on any factual or legal grounds in these writ petitions. As such, the controversy in these writ petitions lies in a narrow compass as to whether the appeals filed before the Appellate Authority below were maintainable or not due to the Repealing Act.

3. The parties have exchanged their affidavits including additional counter-affidavits which were taken on record. Heard the learned Counsel for the parties and carefully perused the records.

4. The Repealing Act came into force in the State of U.P w.e.f 18.3.1999 and its section 3(1)(a) read as under:

“Section 3(1). The repeal of the principal Act shall not affect.— (a) the vesting of any vacant land under sub-section (3) of section 10, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority.”

5. In the present case, the orders challenged before the Appellate Authority were dated 8.5.1980 and 19.12.1985, while the notification under section 10(3) was made on 31.3.1984 and the possession was also allegedly taken on dated 23.1.1986 As such, the dates of the aforesaid orders as well as the date of the possession were prior to 18.3.1999 when the Repealing Act came into force in U.P Therefore, in view of the savings clause, namely, section 3(1)(a), quoted above, the Repealing Act had no affect on the aforesaid orders and the proceedings did not abate under section 4 of the Repealing Act. The impugned orders passed by the CA continued to be governed by the U.L.C.R Act as if the Repealing Act did not come into force. It meant and implied that the rights and remedies available to the respondent qua the above orders under the U.L.C.R Act, continued to remain, available to and exercisable by him at his option, which also included the valuable ‘right to appeal’ against the aforesaid orders under section 33 of the U.L.C.R Act.

6. Our above view is also finds support from the judgment of the Division Bench of this Court in Jon Mohammad v. State of U.P, passed in Civil Misc. Writ Petition No. 3592 of 2006 on 20.1.2006, wherein the Bench held that since the possession of the land stood taken, the proceedings of the appeal before the District Judge did not abate. It was ruled:

“….we have heard learned Counsel for the parties. In view of the fact that the possession of the land was taken on 23rd September, 1988 under section 10(6) of the Act which fact has not been denied in the petition, we are of the opinion that the proceedings did not abate as held by the Hon'ble Supreme Court in Angoori Devi v. State of U.P . 2000 4 AWC 3355.”

7. It may also be mentioned that the Hon'ble Supreme Court has also repeatedly held that the proceedings under the U.L.C.R Act stood abated where the possession was not taken but the proceedings would continue, where possession stood taken prior to the coming into force of the Repealing Act. The notable decisions are: Angoori Devi v. State of U.P . 2000 4 AWC 3355. (5-Judges Bench decision), Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P . 2000 39 ALR 327 SC., Ghasitey Lal Sahu v. Competent Authority . 2004 13 SCC 452., and Mukarram Ali Khan v. State of U.P . 2007 11 SCC 90..

8. Even otherwise, the appeals filed by the respondent were maintainable for an additional reason that the Repealing Act did not take away ‘the right to appeal either expressly or impliedly in respect of the orders passed prior to the repealing of the U.L.C.R Act and, therefore, the ‘right to appeal’ continued to remain available in view of the provisions of section 6(c) of the General Clauses Act, 1887. In view of Garikapati Veeraya v. N. Subbiah Choudhry & Others . AIR 1957 SC 540., vide paragraph No. 23, the Supreme Court ruled that the “this vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.” It has also been recently followed in Transmission Corpn. of A.P v. Ch. Prabhakar . 2004 19 AIC 92 SC, holding that the right of appeal is a vested right to enter the superior Court accruing to the litigant from the date of the lis. Since the statutorily vested right to appeal under section 33 of the U.L.C.R Act of the respondent was not taken away by the Repealing Act either expressly or by necessary intendment of the Repealing Act, the Appeal Nos. 86 and 87 of 2006 filed by the respondent were maintainable and the Appellate Authority rightly exercised its jurisdiction to decide them.

9. As a result of upholding of the impugned orders of the Appellate Authority, the benefit of the Repealing Act would be available to the respondent, as the setting aside of the orders by the Appellate Authority has resulted in setting at naught all the consequential proceedings including the taking of possession and, therefore, the CA cannot proceed any further in view of the Repealing Act.

10. Otherwise also, the statutory benefit of the Repealing Act is also available to the landholder-respondent in the fact-situation of the matter, as the taking of the “possession” in the present case was neither de jure nor de facto. The term “possession” as per sections 3 and 4 of the Repealing Act and section 10(6) of the U.L.C.R Act means and implies the lawful “possession” after “due compliance of the statutory provisions”. In State of U.P v. Boon Udhyog (P) Ltd. . 1999 4 AWC 3324 para 16, a Division Bench of this Court has held that where possession has been taken, its legality is to be decided on merits. Similarly, another Division Bench of this Court in State of U.P v. Hari Ram . 2005 60 ALR 535., has held that “in case possession is purported to be taken under section 10(6) of the Act, still Court is required to examine whether ‘taking of such possession’ is valid or invalidated on any of the considerations in law. If Court finds that one or more grounds exist which show that the process of possession, though claimed under section 10(5) or 10(6) of the Act is unlawful or vitiated in law, then such possession will have no reorganization in law and it will have to be ignored and treated as of no legal consequence”. On examination of the facts on record, it is crystal clear that the possession allegedly taken on 23.1.1986 was unlawful for plurality of reasons which are—Firstly, the possession allegedly taken on 23.1.1986 was pursuant to the CA's order dated 19.12.1985 under section 10(5) which was addressed to deceased Dhan Singh and, therefore, it was nullity and non est factum having no legal consequence and the possession taken on the basis was also void. Secondly, as per the Government Order dated 9.2.1977 issued by the State Government (filed with Supplementary Counter Affidavit and taken on record), the Collector was alone authorised under section 10(6) of the U.L.C.R Act to take possession on behalf of the State Government, but in the instant case, the possession was taken by the Tehsil officials and not by the Collector or the Additional Collector or by the Competent Authority himself. The Collector could not have delegated his authority to anyone else as a delegate could not have further delegated in view of the maxim—Delegatus non potest delegare. As such, the taking of possession by the Tehsil Officials was per se illegal being not as per the authorisation dated 9.2.1977 and, therefore, had no consequences. Thirdly, the possession was taken on 23.1.1986, while the alleged affixation of the order dated 19.12.1985 under section 10(5) of the U.L.C.R Act was made on 9.1.1986 by the process-server and, as such, the possession was taken on 23.1.1986 only after the expiry of 14 days instead of the statutory period of 30 days as enjoined in section 10(5) of the U.L.C.R Act. Fourthly, the possession certificate (Annexure-7 to the WP) did not mention the factum of ‘taking’ possession, and it merely stated the factum of the transfer of possession to the State Government. Needless to say that unless the possession was first ‘taken’, the same could not have been ‘transferred’ to the State Government. The plain reading of the possession certificate does not show taking of possession from the occupants and, therefore, it cannot be termed as a possession certificate under section 10(6). Fifthly, the stand of the State Government before the Appellate Authority was that the State Government has “taken over only symbolic possession over the plots in question and the same cannot be treated physical possession”. If it be so, then also, it would not be deemed to be “possession” within the meaning of section 10(6) of the U.L.C.R Act which meant actual and physical possession and not symbolic one.

11. No other point has either been argued or pressed by the Counsel for the parties.

12. In view of the forgoing, the writ petitions must fail. It is declared that the proceedings under the U.L.C.R Act in Ceiling Case No. 4838/2535/1976–77, State v. Dhan Singh stand abated and the possession of the respondent in respect of the land in question shall not interfered with by the Authorities. The writ petitions are, accordingly, disposed of.

Petition Disposed Off.