The Supreme Court in a land dispute has held that the infraction of prescribed statutory procedure for taking possession cannot be a sole basis to discard the State’s claim of possession, when it is taken long before the date the issue is raised.

A civil appeal was filed against the judgment of the High Court by which the writ petition of the original petitioner was disposed of by declaring that the land in dispute shall continue to be in possession of the said petitioner and would not be treated as surplus land as he was entitled to the benefits of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. Additionally, a direction was issued to the Competent Authority (Urban Ceiling) to ensure that the name of the said petitioner is restored in the revenue records.

The two-Judge Bench of Justice P.S. Narasimha and Justice Manoj Misra said, “In view of the discussion above and having regard to the following: (a) that there was a serious dispute with regard to taking of possession of the surplus land; (b) that there was a delay of about seven years in filing the first writ petition from the date when possession was allegedly taken by the State, after publication of the vesting notification; (c) that no documentary evidence such as a Khasra or Khatauni of the period between alleged date of taking possession and filing of the first writ petition was filed by the original petitioner; (d) that in the earlier two rounds of litigation, the High Court refrained from deciding the issue of possession of the surplus land even though that issue had arisen directly between the parties; and (e) that infraction of the prescribed statutory procedure for taking possession cannot be the sole basis to discard State’s claim of possession, when it is stated to have been taken long before the date the issue is raised, we are of the considered view that the High Court should have refrained from deciding the issue with regard to taking of actual possession of the surplus land prior to the cut off date specified in the Repeal Act, 1999.”

Senior Advocate Rana Mukherjee appeared for the appellants while Advocate Ankur Yadav appeared for the first respondent.

Factual Background -

The original petitioner had a land in the village and with the Urban Land (Ceiling and Regulation) Act, 1976 coming into force, proceedings thereunder were initiated against him giving rise to a case. In such proceedings, vide order, the Competent Authority declared 5499.20 square meter of land as surplus and the said order was questioned before the High Court in the year 1986 through a writ petition, which was dismissed. Taking advantage of the observations made by the High Court, the original petitioner filed objections before the Competent Authority, which were rejected. Such an order was questioned before the High Court through a writ petition whereby, an interim order was passed. The said writ petition remained pending for over a decade and was decided in 2001, after the Repeal Act, 1999 was notified.

In the year 2012, a third writ petition was filed by the first respondent claiming, that an actual possession of the surplus land was never taken and that he continued to remain in possession of the land and was, therefore, entitled to a declaration that ceiling proceedings qua him stood abated by virtue of Section 4 of the Repeal Act, 1999. The cause of action for filing the third writ petition was that, when the original petitioner applied for an extract of the Khatauni (i.e., record of rights) of 1414 to 1419 Fasli, he discovered that name of the State was entered in the records pursuant to a letter. Therefore, to correct the same, the writ petition had to be filed. However, while disposing of the said writ petition, the question of possession was left undecided.

The Supreme Court after hearing the contentions of the counsel for parties observed, “Surprisingly, the issue whether possession was taken prior to the commencement of the Repeal Act, 1999, though had arisen directly for determination in writ petition No.9702 of 1987, was not decided. This issue was critical because rights of the parties were dependent on its determination. Yet, for reasons unknown, the High Court chose not to decide the same while disposing of writ petition no. 9702 of 1987.”

The Court noted that the factum of possession is essentially a question of fact and although there is no hard and fast rule that a question of fact cannot be determined in writ jurisdiction but, in the event of a serious dispute between the parties on a question of fact, a writ court ordinarily refrains from deciding it more so, when writ petitioner has an alternative remedy where such disputed questions of fact can be decided authoritatively.

“… a suit may not lie to declare that surplus land, which has been notified as such under Section 10 (3) of the Ceiling Act, 1976, is free from ceiling for failure to take actual possession prior to enforcement of the Repeal Act, 1999. … However, in our view, on the aforesaid principle a suit on the cause of action shown in the third writ petition would not have been barred”, said the Court.

Furthermore, the Court observed that the factum of actual possession would have to be determined based on the materials/evidence(s) available on record and not merely by finding fault in the procedure adopted for taking possession from the land holder.

“… if possession had been taken prior to the grant of interim order, as is the case of the appellants, and while disposing of the writ petition the question of possession was left open, the interim order would not, in any way, be conclusive to prove continuity of possession”, held the Court.

The Court added that the interim order did not carry much evidentiary value to prove that the possession was not taken prior to the year 1987.

Accordingly, the Apex Court allowed the appeal and set aside the order of the High Court.

Cause Title- State of U.P. & Anr. v. Ehsan & Anr. (Neutral Citation: 2023 INSC 906)

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