RAM CHANDRA PANDEY Vs. STATE OF U P

JUDGEMENT

(1.) THE brief facts of this case are that the petitioner claims himself to be the owner of plot no.96 and 179 situated in village Purwa Nankari, Tehsil Sadar, District Kanpur Nagar which he succeeded from his grand father late Dhani Ram. In the year 1996 his name was also mutated in the revenue record (Khatauni) in the mutation proceedings held after the death of Dhani Ram, who died in the year 1995. The cultivatory possession over the land has been pleaded in paragraph 5 of the writ petition. The extract of Khatauni showing the land of plot no.96 and 179 in the name of the petitioner has been brought on record as Annexure -1 to the writ petition. It has been stated that the land revenue has been paid by the petitioner upto 22 June, 2008. It has also been stated in paragraph 7 of the writ petition that in the life time of late Dhani Ram, Urban Land (Ceiling and Regulation) Act, 1976 ( hereinafter referred to as the 'Act') came into force and late Dhani Ram had submitted return under Section 6 of the Act declaring the land owned and possessed by him at the time of commencement of the Act. The Competent Authority, thereafter rejected the objection filed to the notice issued under Section 8 (3) of the Act and vide order dated 18.5.1979 declared certain land belonging to late Dhani Ram as surplus. In paragraphs 11,12, and 13 of the writ petition it is stated that the Competent Authority neither took possession of the excess land in the life time of late Dhani Ram, nor it proceeded to take possession of the excess land even from the petitioner and the petitioner continues to be in actual physical possession even after the commencement of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 which was made effective in the State of Uttar Pradesh on 18.3.1999. In paragraphs 14 and 15 of the writ petition it is stated that Tehsildar Kanpur Sadar, vide an ex -parte order dated 09.02.2004, has expunged the name of the petitioner from the Khatauni of the Fasli years 1410 -1415 and recorded the same in the name of State of U.P. The petitioner filed revision under Section 219 of U.P. Land Revenue Act, which has been dismissed by the Additional Commissioner, Kanpur Division, Kanpur on 18.9.2009 as not maintainable. Thereafter the petitioner requested the Competent Authority to extend the benefit of Repeal Act but it was not done. The petitioner thus filed this writ petition with the prayer for a direction in the nature of mandamus commanding the respondents not to interfere in the actual physical possession of the petitioner over the Khasra Plots No. 96 and 179 measuring 0.533 hectare and 0.133 hectare respectively situated in Village: Purwa Nankari, Tehsil: Sadar, Disrict: Kanpur Nagar and restore the entries of the petitioner's name in the revenue record.

(2.) A counter affidavit has been filed by the State respondent. In para 4 of the counter affidavit it is stated that after giving the benefit of 1000 square meter land, 14423.28 square meter of Arazi Nos.179,61,96,180,88 belonging to the petitioner situated in village Purwa Nankari, Kanpur was proposed to be declared as surplus and it has further been stated that the notification under section 10 (3) of the Act was issued on 28.10.1980 which was published in the Government Gazette on 19.11.1983. Thereafter a notice under Section 10(5) of the Act was issued on 15.12.1984 for handing over/transfer of possession of the surplus land, which was served through registered post and when the land holder himself failed to hand over the possession of the surplus land, the Tehsil Staff went on the spot and took over the possession of the surplus land on behalf of the State of U.P. on 02.04.1992. After taking possession of the land, it was transferred in favour of the Kanpur Development Authority in the year 2003. It has also been stated in the counter affidavit that the proceedings for payment of compensation is under consideration. Photo copy of possession memo 02.04.1992 alongwith notice under Section 10(5) of the Act has been brought on record as Annexure C.A -1 to the counter affidavit.

(3.) IN paragraph 5 of the rejoinder affidavit, it has been stated that the respondents have not shown or filed any order which is required to be passed under Section 10(6) of the Act after the alleged notice was issued by the Competent Authority under sub -section (5) of Section 10 of the Act, meaning thereby that the notice under section 10(5) of the Act was not acted upon. The memo conveying the land to the Kanpur Development Authority on 06.01.2003 is a paper work and does not affect the right of the petitioner who had perfected his continued possession even after the repeal of the Urban Land (Ceiling and Regulation) Act, 1976 in the year 1999.