Prakash Krishna, J.:— The present writ petition arises out of proceedings initiated against the petitioner under the provisions of Urban Land (Ceiling and Regulation) Act 1976.
2. By means of the present petition, the petitioner has sought the quashing of the orders dated 11.1.2000 and 3.6.1982 passed by the Competent Authority appointed under the Act and writ of mandamus commanding the State Government to decide the petitioner's application filed under section 20 of the said Act on merit taking into consideration the recommendation dated 13.8.1982 as also to exercise revisional power under section 34 of the Act.
3. The petitioner is a co-sharer in Plot No. 283 along with two persons namely Atma Ram S/o Hari Ram resident of Kandaila Tehsil Kairana District Muzaffar Nagar and Baru Mal son of Dhandhan Rai Resident of Kanoongoyan, Meerut. The area of the said plot is 4 Bighas 16 Biswa.
4. It was purchased by the afore stated three persons from Shri Satish Chandra Jain S/o Shri Sumat Prasad Jain resident of Civil Lines, Ram Bagh, Bareilly and Shri Hamid Ullah son of Shri Hazi Abdullah resident of Mohalla Sailani, Bareilly through a registered Sale Deed.
5. Proceedings to declare the share of the petitioner as surplus land was initiated by serving a draft statement on the petitioner to which she did file an objection disputing the correctness of the draft statement. She stated that the petitioner has five members in her family and she has already filed an exemption application under section 20 of the Act. It was further pleaded that there was no master plan for Bareilly in the year 1976 and as such the land in question cannot be declared surplus under the provisions of the said Act being agricultural land. Reliance on various revenue extracts in this regard was made. It was also pleaded that the total are of the land in the share of the petitioner is 3035.04
6. sq.mtr and she is entitled to retain 1500 sq.mtr and for the rest she has already applied for grant of exemption before the Competent Authority (namely State Government) on the ground that land is agricultural land. The said objection was not found favour with the Competent Authority who by the order dated 3.6.1982 declared 2546.72 sq.mtr as surplus land. It has been further pleaded in the petition that the petitioner's application for grant of exemption was processed by the State Government and a favourable recommendation was made in her favour by the competent authority and the matter remained pending before the State Government for a considerable period of time.
7. Challenging the aforesaid order it was pleaded that the Competent Authority illegally without serving a notice on her passed the impugned order ex parte. She is wife of Rajendra Kumar Agarwal, Resident of Madho Wari near Ramayan Mandir, Bareilly but her husband's name and address was wrongly shown in the notice and as such she was not served. On coming to know of the ex parte order she filed an application before the Competent Authority for recall of the said order which has been rejected by the impugned order dated 11.1.2000 on the short ground that after the repeal of the said Act by the Urban Land (Ceiling and Regulation Act) Repeal Act 1999, no order can be passed on the application. The petitioner has further alleged in the petition that she is in actual physical possession of the land in question on the spot and in view of the aforesaid Repeal Act 1999, all the proceedings initiated under the said Principal Act stands abated as she is still continuing in physical possession of the land in question.
8. A counter affidavit has been filed on behalf of the respondent interalia on the ground that the earlier order of the Competent Authority declaring the land as surplus has become final as the petitioner did not prefer any appeal and the possession has been taken by the Government as is evident from the mutation entry as also from the Dhakalnama. In the rejoinder affidavit the stand taken in the writ petition has been reiterated.
9. Shri Yogesh Agrawal, learned counsel for the petitioner submits that in view of the fact that the petitioner is still continuing in physical possession of the land in question and the fact that the Principal Act has been repealed by Repeal Act 1999, the proceedings declaring the land as surplus stand abated under section 4 of the Repeal Act. Reliance has been placed on a judgement of Apex Court in the case of Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P, JT 2000 (3) SC 391; State of U.P v. Hari Ram 2006 ACJ 769; and on unreported judgement in Civil Misc. Writ Petition No. 3680 of 2003 Smt. Shakuntala Devi v. State of U.P delivered on 23.9.2005
10. In contra, the learned standing counsel for the respondents submits that in view of the specific averment made in the counter affidavit that possession has been taken by the State Government which is evident from Dhakalnama and the mutation has also been affected in favour of the State Government, the surplus land stands vested in the State Government, notwithstanding the commencement of the Repeal Act namely Urban Land (Ceiling and Regulation) Repeal Act 1999. On merits, he submits that the order of the competent authority having attained finality as no appeal was filed within the statutory period, no interference is called for in the present writ petition. He also submits that in view of the Repeal Act, the application of the petitioner for grant of exemption filed before the State Government under 20 of the Act can be considered now.
11. Considered the respective submissions of the counsel for the parties and perused the record.
12. The case of the petitioner from the very beginning is that no notice was served on her before declaring the land in question as surplus land as her address is wrongly mentioned in the record of the respondent. The particulars of the petitioner are Smt. Prem Kumari Agarwal, wife of Shri Rajendra Kumar Agarwal, Resident of Madho Wari near Ramayan Mandir, Bareilly. While in the notice purported to have been issued to the petitioner, the particulars of the petitioner have been shown as Smt. Prem Kumari, widow of Late Lala Pyare Mohan Lal, resident of Gali Mirdhan, Barreily, vide annexure-2 to the writ petition which is a copy of the order declaring 546.72 sq.mtr land as surplus land vide order dated 3.6.1982 There is no averment or even whisper in the counter affidavit that the notice was addressed and issued to the petitioner on the correct address. On these undisputed facts, it is reasonable to draw an inference that before declaring the land as surplus land, no proper opportunity was afforded to the petitioner which is sine quo non in these proceedings.
13. Secondly, in response to the draft statement, the petitioner preferred objections. One of the objections was that she has already filed an application for grant of exemption under section 20 of the Act before the State Government and the proceedings may be stayed till the disposal of the said application. The said plea was rejected summarily by the Competent Authority by observing that no evidence in support thereof was filed. As a matter of fact, there is clinching evidence to show that the petitioner had filed an application under section 20 of the Act before the State Government. A report from the concerned officer was called by the State Government and the officer recommended for grant of exemption through the recommendation dated 13.8.1982 In the counter affidavit, these facts have not been denied and in reply a plea has been raised that all these facts may be relevant for the purposes of application under section 20 of Act. The petitioner could not file the relevant document and place the material before the competent authority as she was not served with any notice and as such was prevented by sufficient cause to appear. On an opportunity being afforded, she could have substantiated her claim on merits. When she came to know about the ex parte order, she filed an application which has been dismissed by the impugned order dated 11.1.2000 on the short ground that after the commencement of the Repeal Act 1999, no order on the application can be passed. The petitioner thus, is being deprived of her property without following the procedure established by law. The upshot of the above discussions is that the petitioner was not afforded opportunity of hearing before passing of the impugned order. The petitioner cannot be made to suffer on account of the lapse on the part of the competent authority. The order declaring the land as surplus therefore, is vitiated. This is one aspect of the case.
14. The second aspect of the case is that the Principle Act has been repealed by the Repeal Act 1999. The effect of the Repeal Act on the pending proceedings came up for consideration before the Apex Court in the case of Pt. Madan Swaroop Shrotiya Public Charitable Trust (Supra), wherein section 4 of the Repealing Act was up for consideration. The Apex Court in view of the fact that possession of surplus land has not been taken by the State Government abated the proceedings under section 4 of the Repeal Act 1999.
15. The submission of the learned counsel for the petitioner is that in the present case also the entire proceedings are liable to be abated as the petitioner is still continuing in occupation of the surplus land which has been hotly disputed by the learned standing counsel. Next point therefore, is whether on the facts of the present case, in view of section 4 of the Repeal Act 1999, the entire proceedings stands abated or not. Great emphasis was laid by the learned standing counsel on paragraphs 8 & 12 of the counter affidavit wherein it has been stated that the possession of the land was taken by the State of U.P and others. Reliance was placed on Dhakalnama along with a copy of Khatauni showing that the land has been mutated in the name of the the Government vide CA-1 & CA-2 to the counter affidavit. A bare perusal of the Dhakalnama would show that there is no signature thereon of any person delivering the possession. In the Khatauni of the year 1395 to 1400 F Fasli, it is mentioned that the name of Smt. Prem Kumari, the daughter of Lal Pyare be deleted and name of State Government be recorded vide order dated 5.8.1992 The address of the alleged witness of the said delivery of possession has not been mentioned. The document appears to have been prepared by the Tahsidar (Sadar), Bareilly, without going on the spot.
16. There is nothing on record to show that the State Government is in actual physical possession of the surplus land except alleging that the possession has been taken. The counter affidavit is silent as to whether the possession has been taken actually on the spot or the State Government is in constructive possession. The petitioner having been in possession of the unpartitioned land in question being a co-sharer, no actual possession could possibly be taken without there being any partition. It is not the case of the respondent that there has been a mutual partition amongst the co-sharers, as also with the State Government. At the most it can be inferred that a constructive possession was taken by the State Government.
17. The another aspect of the case is that there is no averment in the counter affidavit that any compensation amount has been paid to the petitioner.
18. In State of U.P through the Competent Authority v. Hari Ram (Supra) it has been held as follows:
“…….an illegal act is not recognized in law and has to be ignored unless specifically required under statute to be reckoned with. Secondly, possession of surplus land, on notice given under section 10 (5) of the Act is to be surrendered by the landowner voluntarily in pursuance to said notice. If the landowner does not surrender possession in pursuance to the aforesaid notice, the Act contemplates taking possession by force and coercing the landowner under section 10 (6) of the Act. If possession is taken in an extraordinary manner (process not recognized in law) i.e without resorting to the provisions contemplated under section 10 (5) or Section 10 (6) of the Act, then possession will be irrelevant and of no consequence so far as the applicability of the Repeal Act is concerned. The Repeal Act shall have no effect on the Principal Act if possession of surplus land was not taken as contemplated in the Principal Act. Repeal Act, clearly talks possession being taken under section 10 (5) or 10 (6) of the Act. It is a statutory obligation on the Competent Authority or State to take possession as permitted in law. It is to be appreciated 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 recognition in law and it will have to be ignored and treated as of no legal consequence. The possession envisaged under section 3 of the Repeal Act is de facto and not de jure only.”
19. The aforesaid extract has been reproduced and relied upon unreported judgement in the writ of Smt. Shakuntala Devi referred to above and it has been held that the law under section 10(5) of the Act is crystal clear that notice in writing is to be given to surrender or deliver of the possession and if anybody refuses or fails to comply, the authority may take possession of the vacant land under section 10(6) of the Act. Interestingly in the counter affidavit, there is no averment even remotely that the alleged possession was taken by them after issuing the notice as required under section 10(6) of the Principal Act. Straightway, reliance has been placed on the Dhakalnama and mutation entry as discussed above. It is also stated in the counter affidavit that surplus land was demarcated in map filed as annexure CA-3.
20. As discussed above, it does not appear from the record that the possession was delivered voluntarily by the petitioner she was forced to give it. In the absence of any corroborative material on the record, even if a possession memo is there or mutation has taken place, the court is of the view that taking of such possession is not valid in law and it will not confer any right, title or interest on the respondents.
21. As held by this Court in the case of Hari Ram (Supra) and Smt. Shakuntala Devi (Supra), if the possession has not been taken in accordance with law by following the procedure as envisaged under the Principal Act, the unauthorised act of the respondent for taking possession on paper will be of no avail to them.
22. As held in the case of Smt. Shakuntala Devi (Supra), mutation of name cannot give title. Mere mutation cannot authorize the State to say that the land is in their actual physical possession. It has been held so in the case of Hari Ram (Supra) that
“Mere ‘mutation’ of entry in favour of State/other persons in revenue records, is irrelevant/inconsequential so far as the applicability of section 3 of Repeal Act is concerned.”
23. It is not in dispute that the plot in question, is owned by three co sharers namely Smt. Prem Kumari Agrawal (the petitioner), Atma Ram and Barumal. The plot has not yet been partitioned. It is not the case of the respondents that any partition by metes and bounds has taken place on the spot. It is difficult to understand as to how the State Government has taken actual physical possession of a particular portion of the said plot, especially when the taking of possession is being disputed by the petitioner.
24. The Apex Court after referring Kartar Singh v. Harjinder Singh (1990) 3 SCC 517 : AIR 1990 (1) SC 854; Ramdas v. Sitabai, JT 2009 (8) SC 224; MVS Manikayala Rao v. M Narasimhaswami AIR 1966 SC 470 and Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh AIR 1953 SC 487 held in Gajara Vishnu Gosavi v. Prakash Nanasaheb Kamble, JT 2009 (13) SC 432 that the law is to the effect that in a given case an undivided share of a co-parcener can be a subject matter of sale/transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of a Court in a partition suit, or by settlement among the co-sharers.
25. The upshot of the above discussions is that the land of the petitioner was declared as surplus land without giving her for proper opportunity of hearing in a arbitrary manner. She has not been paid any compensation amount nor she has been actually dispossessed from the land in question.
26. On enforcement of the Repeal Act 1999, the actual possession having not been taken by the State Government, the entire proceedings under the Principal Act stands abated in view of Sections 3 & 4 of the Repeal Act 1999.
27. Even otherwise also a recommendation in the favour of the petitioner under section 20 of the Act was made by the authority concerned as long back as on 13.8.1982 which remained pending before the State Government for about 17 years and the Act having been repealed, the petitioner cannot be made to suffer for inaction on the part of the State Government. We, therefore, hold that the entire proceedings against the petitioner stands abated in view of the commencement of the Repealing Act 1999 and also that the land of the petitioner cannot be treated as surplus land under the Principal Act.
28. Annexure-8 to the writ petition is the recommendation made by the Deputy Director dated 13.8.1982 to the State Government recommending the case of the petitioner for grant of exemption under section 20 of the Act. It has been stated that the total area of the petitioner's land is 3035.04 sq.mtr out of which she can return 1500 sq.mtr and for the remaining land exemption under section 20 may be granted.
29. The authenticity and validity of the said recommendation has not been questioned in the counter affidavit nor during the course of the argument. This being so, there appears to be no justification at all on the part of the State Government in keeping the matter pending and not deciding the exemption application for about 17 years and rejecting the application of the petitioner on a short ground that in view of the Repeal Act 1999, no order now can be passed in favour of the petitioner. The petitioner, cannot be made to suffer on account of delay and non action on the part of the State Government.
30. It is not the case in the counter affidavit that any compensation amount has been paid to the petitioner under the Principal Act.
31. The two orders impugned herein, therefore, cannot be allowed to stand, being illegal and contrary to law.
32. In the result, the land in question is held free from any requisition or acquisition under the Principal Act and the two orders of the Competent Authority impugned herein dated 3.6.1982 and 11.1.2000 are therefore, quashed. The writ petition succeeds and is allowed. No order as to costs.