Supreme Court of India
STATE OF U.P. & ANRversusEHSAN & ANR
- Citation
- 2023 INSC 906
- Decided
- 13 October 2023
- Disposal
- Appeal(s) allowed
Holding
The High Court should have refrained from adjudicating the factual dispute on actual possession and should have relegated the petitioner to a suit.
Summary
The original landholder owned 7,499.20 sq m in Saharanpur, of which 5,499.20 sq m was declared surplus under the Urban Land (Ceiling and Regulation) Act, 1976 in 1977 and vested in the State through notifications in 1978‑79. The State claimed it had taken actual possession of the surplus land in March 1979, while the landholder contended that possession was never taken and that the Repeal Act, 1999 should render the acquisition abated. The High Court, ignoring the unresolved factual dispute on possession, dismissed the landholder’s 2012 writ petition and held the land remained in State possession. On appeal, the Supreme Court examined whether the High Court should have adjudicated the factual issue of possession in a writ proceeding, given the serious dispute, delay, and the availability of an alternative remedy (a suit). It held that the High Court ought to have refrained from deciding the possession issue and should have directed the petitioner to a suit. Consequently, the Supreme Court set aside the High Court order, dismissed the writ petition without prejudice to a suit, and allowed the appeal.
Issues considered
- Whether a High Court, exercising writ jurisdiction, should decide a contested factual issue of actual possession of surplus land when the same issue was left undecided in earlier litigation.
- Whether the delay of about seven years in filing the writ petition and the absence of documentary evidence preclude the State’s claim of possession.
- Whether the existence of an alternative remedy (a civil suit) bars the exercise of writ jurisdiction in this context.
Legislation cited
- Urban Land (Ceiling and Regulation) Act, 1976s. 10(1), s. 10(3), s. 10(5), s. 10(6), s. 11-A, s. 17(3-A), s. 6(1), s. 8(3), s. 8(4)
- Urban Land (Ceiling and Regulation) Repeal Act, 1999s. 3, s. 4
Subjects
Urban Land Ceiling Actpossessionwrit jurisdictionrepeal actdelayalternative remedycivil suitland acquisitionstatutory procedurelaches
Judgment
[2023] 13 S.C.R. 905 : 2023 INSC 906
CASE DETAILS
STATE OF U.P. & ANR.
v.
EHSAN & ANR.
(Civil Appeal No.5721 of 2023)
OCTOBER 13, 2023
[PAMIDIGHANTAM SRI NARASIMHA AND
MANOJ MISRA, JJ.]
HEADNOTES
Issue for consideration: Whether in exercise of writ jurisdiction
the High Court should have refrained from adjudicating the contentious
issue with regard to taking of actual possession of the surplus land from
the landholder, when the same was not decided in the previous round of
litigation even though it had arisen for consideration.
Urban Land (Ceiling and Regulation) Repeal Act, 1999 – The
High Court disposed of the writ petition by judgment and order dated
08.10.2018 declaring that the land in dispute shall continue to be in
possession of the first respondent-original petitioner and would not
be treated as surplus land as he is entitled to the benefits of the Urban
Land (Ceiling and Regulation) Repeal Act, 1999 – Propriety:
Held: 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
905
906 SUPREME COURT REPORTS [2023] 13 S.C.R.
date the issue is raised, this Court is 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 – Instead, the writ petitioner should have been relegated
to a suit – The impugned order passed by the High Court is set aside – The
first respondent’s writ petition is dismissed without prejudice to his right
to institute a suit. [Paras 35, 36]
LIST OF CITATIONS AND OTHER REFERENCES
Indore Development Authority vs. Manoharlal (2020) 8 SCC 129:
[2020] 3 SCR 1 – followed.
State of U.P. vs. Hari Ram (2013) 4 SCC 280: [2013] 2 SCR 301; Syed
Maqbool Ali vs. State of U.P. (2011) 15 SCC 383: [2011] 4 SCR 238; State
of Assam vs. Bhaskar Jyoti Sarma & Others (2015) 5 SCC 321: [2014] 14
SCR 1451; Banda Development Authority vs. Moti Lal Agarwal (2011) 5
SCC 394: [2011] 7 SCR 435 – relied on.
Raghbir Singh Sehrawat vs. State of Haryana and Others (2012) 1 SCC
792: [2011] 14 SCR 1113; Municipal Council, Ahmednagar and Another vs.
Shah Hyder Beig and Others (2000) 2 SCC 48: [1999] 5 Suppl. SCR 197;
State of M.P. vs. Ghisilal (2021) SCC Online SC 1098; Competent Authority,
Calcutta, Under The Urban Land (Ceiling and Regulation) Act, 1976 and
Another vs. David Mantosh and Others (2020) 12 SCC 542: [2019] 4 SCR
331; Saurav Jain and Another vs. A.B.P. Design and Another (2021) SCC
Online SC 552 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION : Civil Appeal No.5721 of 2023.
From the Judgment and Order dated 08.10.2018 of the High Court of
Judicature at Allahabad in WC No.21009 of 2012.
Appearances:
Rana Mukhejee, Sr. Adv., Rajeev Kumar Dubey, Ashiwan Mishra, Ms.
Chandni Arora, Ms. Oindrilla, Kamlendra Mishra, Advs. for the Appellants.
Ankur Yadav, Adv. for the Respondents.
STATE OF U.P. & ANR. v. EHSAN & ANR. 907
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
MANOJ MISRA, J.
1. This appeal is directed against the judgment and order of the High
Court1 dated 08.10.2018, passed in Writ C No. 21009 of 2012, by which the
writ petition of the first respondent2 was disposed of by declaring that the
land in dispute shall continue to be in possession of the original petitioner
and would not be treated as surplus land as he is entitled to the benefits of the
Urban Land (Ceiling and Regulation) Repeal Act, 19993. In addition to the
above, a direction was issued to the Competent Authority (Urban Ceiling)
Saharanpur4 to ensure that the name of the original petitioner is restored in
the revenue records.
Facts/Pleadings
2. The original petitioner had land holding admeasuring 7499.20
square meter comprising plot nos.166, 177, 179 and 185 in village Panjaura
Bairoon, Tehsil and District Saharanpur. With the Urban Land (Ceiling and
Regulation) Act, 19765 coming into force, proceedings thereunder were
initiated against the original petitioner giving rise to Case No. 2186 of 1976.
In these proceedings, vide order dated 26.11.1977, the Competent Authority
declared 5499.20 square meter of land as surplus.
3. The aforesaid order dated 27.11.1977 was questioned before the
High Court in the year 1986 through a writ petition, which was dismissed
vide order dated 3.1.1986. The order dated 3.1.1986 is reproduced below:
“This Writ Petition is against the order of the Competent Authority,
Saharanpur dated 26.11.1977- The contention of the Learned counsel
for the petitioner is that the impugned order is without jurisdiction
and is unenforceable. If the order is unenforceable, the petitioner
1 High Court of Judicature at Allahabad
2 The original petitioner
3 The Repeal Act, 1999
4 The Competent Authority
5 The Ceiling Act, 1976
908 SUPREME COURT REPORTS [2023] 13 S.C.R.
can demonstrate before the relevant authority and if that authority
decides against the petitioner, the petitioner can approach this Court
under Article 226 of the Constitution. At this stage, I am not inclined
to interfere with the impugned order.
The writ petition is dismissed with the above observation in limine and
it would be open to the petitioner to approach this court under Article
226 of the Constitution if his contention is not accepted hereafter.
A copy of this order may be given to the petitioner within 24 hours on
receipt of usual charges.”
4. Taking advantage of the observations made by the High Court in
its order dated 3.1.1986, the original petitioner filed objections before the
Competent Authority, which were rejected, vide order dated 27.03.1987,
while observing that, -- (a) 5499.29 square meter of land was declared surplus
on 26.11.1977; (b) the notification under Section 10(1) was published on
09.1.1978; (c) the notification under Section 10(3) was made on 15.01.1979,
(d) the appeal of the original petitioner before the District Judge was rejected
on 12.07.1979; (e) the objection with regard to jurisdiction of the Competent
Authority, on the ground that land is agricultural and outside the master plan,
is unsustainable because, according to the report, it fell in a residential area
within the purview of the Master Plan; (f) the possession of the surplus land
had already been taken.
5. The aforesaid order dated 27.03.1987 was questioned before the
High Court through writ petition No.9702 of 1987 wherein, on 20.08.1987,
an interim order was passed in the following terms:
“Issue Notice.
In the meantime, the petitioner shall not be dispossessed from the land
declared to be surplus with him.”
6. The said writ petition remained pending for over a decade and was
decided on 28.02.2001, after the Repeal Act, 1999 was notified. The order
dated 28.02.2001 is reproduced below:
“Heard the learned counsel for the parties.
This petition related to the Urban Land (Ceiling and Regulation)
Act, 1976 as repealed in 1999. In Pt. Madan Swarup Shrotiya, Public
STATE OF U.P. & ANR. v. EHSAN & ANR. 909
MANOJ MISRA, J.
Charitable Trust Vs. State of U.P. & others J.T. 2000(3) SC 391 it has
been held by the Supreme Court that if the possession has been taken
over by the State Government, then the proceedings under the Act will
not abate but if the possession has not been taken then the proceeding
will abate. We make it clear that the word possession means actual
possession (note: some words appear to be missing here) has not been
taken over the proceedings shall not abate otherwise they will abate.
The petition is disposed of accordingly.”
(Note: supplied)
7. In the year 2012 a third writ petition6 was filed by the first respondent
claiming, inter alia, that actual possession of the surplus land was never
taken; he continues to remain in possession of the land and is, 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 on 25.10.2012 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 dated 20.05.2009. Therefore, to correct the same, the
writ petition had to be filed.
8. Refuting original petitioner’s case, on behalf of the State and
the Competent Authority (i.e., the appellants herein), a counter affidavit
was filed claiming, inter-alia, that,-- (i) the original petitioner had filed a
statement under Section 6(1) of the Ceiling Act, 1976, in pursuance thereof,
a draft statement proposing 5499.29 square meter of land as surplus was
issued under Section 8(3) on 30.06.1977; (ii) on 26.11.1977 the Competent
Authority confirmed the draft statement; (iii) on 09.01.1978 a notification
under Section 10(1) was published, which was followed by publication of a
notification under Section 10(3) in the official Gazette on 15.1.1979, thereby
vesting the land in the State; (iv) on 27.02.1979 a notice dated 26.02.1979,
under Section 10(5), was served on the land holder and, pursuant thereto,
physical possession of the surplus land admeasuring 5499.29 square meter
was taken on 08.03.1979; (v) the benefit of the Repeal Act, 1999 is not
available to the petitioner.
6 Writ Petition No. 21009 of 2012
910 SUPREME COURT REPORTS [2023] 13 S.C.R.
High Court’s Findings
9. The High Court after considering the pleadings and the materials
on record, concluded:
“Having considered the submissions raised and applying the law laid
down by the Apex Court, it is evident that the notice dated 26.02.1979
under section 10(5) of the Act which is said to have been served on
27.02.1979, as has been alleged in paragraph no. 4 of the counter
affidavit, the same has been denied by the petitioner, but even assuming
the same to be correct, the actual physical possession alleged to have
been taken on 08.03.1979 could not be done as the period of 30 days
had not expired. Even otherwise the document which has been filed as
Annexure No. 1 to the counter affidavit is a report and not the actual
possession memo. It also records that Bashir, who is the father of the
petitioner refused to sign on the proceedings while possession was
taken and the petitioner was not present at the time. It is, therefore,
clear that this was a sheer paper transaction prepared before the expiry
of the statutory period of 30 days and if the petitioner had not handed
over voluntary possession, the dispossession could have been possible
only by complying with the provisions of section 10(6) of 1970 Act. No
such procedure has been followed nor any such evidence is on record.
It is therefore evident that the case taken in the counter affidavit of
having taken over the actual physical possession is not in conformity
with law nor actual possession appears to have been taken.”
10. Before concluding as above, the High Court took notice of various
judicial pronouncements including of this Court, namely, (a) State of U.P. vs.
Hari Ram7; (b) Raghbir Singh Sehrawat vs. State of Haryana and Others8
and (c) State of Assam vs. Bhaskar Jyoti Sarma & Others9.
11. We have heard Mr. Rana Mukherjee, learned senior counsel for
the appellants and Mr. Ankur Yadav for the first respondent.
7 (2013) 4 SCC 280
8 (2012) 1 SCC 792
9 (2015) 5 SCC 321
STATE OF U.P. & ANR. v. EHSAN & ANR. 911
MANOJ MISRA, J.
Submissions On Behalf Of The Appellants
12. Learned counsel for the appellants submitted that notice under
Section 10(5) of the Ceiling Act, 1976 was served on the tenure holder on
27.02.1979. Pursuant thereto, possession was taken on 8.3.1979. However,
since the original petitioner avoided signing the memorandum of possession,
the Competent Authority went to the spot, took possession in presence of
two co-sharers and prepared a memorandum to that effect. Following that,
the name of the State stood entered in the revenue records on 17.3.1982.
As such, the land stood vested in the State. Later, it was transferred to
Saharanpur Development Authority on 26.5.2003. Consequently, benefit of
the Repeal Act, 1999 is not available to the original petitioner.
13. Appellants’ also questioned the maintainability of the writ petition
on the following grounds:
(i) There existed a serious dispute between the parties on a pure
question of fact (i.e., whether actual possession was taken or
not), which could appropriately be decided after taking oral
evidence. Further, documentary evidence of possession could
not be discarded merely because, (a) possession was taken
before expiry of 30 days from the date of service of notice under
Section 10(5) of the Ceiling Act, 1976, and (b) the possession
memorandum did not bear signature of the landholder. In these
circumstances, the writ petitioner should have been relegated to
a suit, particularly when in the earlier two rounds of litigation the
High Court refrained from addressing the issue of possession.
(ii) The writ petition is highly belated, inasmuch as, after disposal of
writ petition No. 9702 of 1987, the land which stood vested in the
State was transferred to the Saharanpur Development Authority in
the year 2003 and since then it has been in its possession whereas
the writ petition was filed in the year 2012. Such a belated petition
ought to have been thrown out on the ground of delay alone.
(iii) Once the land vests in the State and possession of the land has
been taken, the State becomes absolute owner of the land and it
cannot be divested of its title.
912 SUPREME COURT REPORTS [2023] 13 S.C.R.
Decisions Cited By Appellants’ Counsel.
14. In support of his submissions, the learned counsel for the appellants
relied on several decisions, which are noticed, and discussed in brief, below:
(i) Syed Maqbool Ali vs. State of U.P.10. In this case, in the context
of a challenge to occupation of a piece of land without lawful
acquisition and payment of compensation, it was observed that
remedy of the landholder is either to institute a civil suit for
recovery of possession and/or for compensation, or to file a writ
petition if the action can be shown to be arbitrary, irrational,
unreasonable, biased, mala fide or without the authority of law,
and seek a direction that the land should be acquired in a manner
known to law. It was also observed that in such matters, the
person aggrieved should approach the High Court diligently. If
the writ petition is belated, unless there is good and satisfactory
explanation for the delay, the petition is to be rejected on the
ground of delay and laches.
(ii) State of Assam vs. Bhaskar Jyoti Sarma, (supra). In this case,
which arose out of proceedings under the Ceiling Act, 1976,
it was held that a bare reading of Section 3 of the Repeal Act,
1999 makes it clear that repeal of the principal Act does not
affect the vesting of any land under sub-section (3) of Section
10 of the principal Act, possession whereof has been taken over
by the State Government or any person duly authorized by the
State Government in that behalf or by the competent authority.
Further, in the context of the argument that due procedure for
taking of possession was not followed, while distinguishing this
Court’s earlier decision in State of U.P. vs. Hari Ram (supra), it
was observed /held:
“16. ………………. Assuming that a person in possession
could make a grievance, no matter without much gain
in the ultimate analysis, the question is whether such
grievance could be made long after the alleged violation
10 (2011) 15 SCC 383
STATE OF U.P. & ANR. v. EHSAN & ANR. 913
MANOJ MISRA, J.
of Section 10(5). If actual physical possession was taken
over from the erstwhile landowner on 7-12-1991 as is
alleged in the present case any grievance based on Section
10(5) ought to have been made within a reasonable time
of such dispossession. If the owner did not do so, forcible
taking over of possession would acquire legitimacy by
sheer lapse of time. In any such situation the owner or
the person in possession must be deemed to have waived
his right under Section 10(5) of the Act. Any other view
would, in our opinion, give a licence to a litigant to make
a grievance not because he has suffered any real prejudice
that needs to be redressed but only because the fortuitous
circumstance of a Repeal Act tempted him to raise the
issue regarding his dispossession being in violation of the
prescribed procedure.
17. Reliance was placed by the respondents upon the
decision of this Court in Hari Ram case [State of U.P.
v. Hari Ram, (2013) 4 SCC 280 : (2013) 2 SCC (Civ) 583]
. That decision does not, in our view, lend much assistance
to the respondents. We say so, because this Court was
in Hari Ram case [State of U.P. v. Hari Ram, (2013) 4
SCC 280 : (2013) 2 SCC (Civ) 583] considering whether
the word “may” appearing in Section 10(5) gave to the
competent authority the discretion to issue or not to issue
a notice before taking physical possession of the land in
question under Section 10(6). The question whether breach
of Section 10(5) and possible dispossession without notice
would vitiate the act of dispossession itself or render it
non est in the eye of the law did not fall for consideration
in that case. In our opinion, what Section 10(5) prescribes
is an ordinary and logical course of action that ought to
be followed before the authorities decided to use force to
dispossess the occupant under Section 10(6). In the case at
hand if the appellant’s version regarding dispossession of
the erstwhile owner in December 1991 is correct, the fact
that such dispossession was without a notice under Section
914 SUPREME COURT REPORTS [2023] 13 S.C.R.
10(5) will be of no consequence and would not vitiate or
obliterate the act of taking possession for the purposes of
Section 3 of the Repeal Act. That is because Bhabadeb
Sarma, erstwhile owner, had not made any grievance based
on breach of Section 10(5) at any stage during his lifetime
implying thereby that he had waived his right to do so.
(Emphasis supplied)
(iii) Municipal Council, Ahmednagar and Another vs. Shah Hyder
Beig and Others11. In this case, in the context of a belated
challenge to the land acquisition proceedings, applying the
principle that delay defeats equity, it was observed that a belated
challenge is not to be entertained and the plea of delay can be
raised also at the stage of arguments.
(iv) Indore Development Authority vs. Manoharlal12. Paragraph
258 of this judgment rendered by a Constitution Bench of this
Court was cited to canvass that once title of the land vests in the
State, consequent to acquisition and taking of possession, even
if the landholder has retained possession or otherwise trespassed
upon it after possession has been taken by the State, he remains
a trespasser and his possession would be deemed to be on behalf
of the State.
(v) Banda Development Authority vs. Moti Lal Agarwal13. In this
case, this Court culled out principles concerning the mode of
taking possession of a piece of land from the landholder. The
relevant portion of the judgment is extracted below:
“37. The principles which can be culled out from the above-
noted judgments are:
(i) No hard-and-fast rule can be laid down as to what act
would constitute taking of possession of the acquired land.
11 (2000) 2 SCC 48
12 (2020) 8 SCC 129
13 (2011) 5 SCC 394
STATE OF U.P. & ANR. v. EHSAN & ANR. 915
MANOJ MISRA, J.
(ii) If the acquired land is vacant, the act of the State
authority concerned to go to the spot and prepare a
panchnama will ordinarily be treated as sufficient to
constitute taking of possession.
(iii) If crop is standing on the acquired land or building/
structure exists, mere going on the spot by the authority
concerned will, by itself, be not sufficient for taking
possession. Ordinarily, in such cases, the authority
concerned will have to give notice to the occupier of the
building/structure or the person who has cultivated the
land and take possession in the presence of independent
witnesses and get their signatures on the panchnama. Of
course, refusal of the owner of the land or building/structure
may not lead to an inference that the possession of the
acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may
not be possible for the acquiring/designated authority to
take physical possession of each and every parcel of the
land and it will be sufficient that symbolic possession is
taken by preparing appropriate document in the presence
of independent witnesses and getting their signatures on
such document.
(iv) If beneficiary of the acquisition is an agency/
instrumentality of the State and 80% of the total
compensation is deposited in terms of Section 17(3-A) and
substantial portion of the acquired land has been utilised in
furtherance of the particular public purpose, then the court
may reasonably presume that possession of the acquired
land has been taken.
38. In the light of the above discussion, we hold that the
action of the State authorities concerned to go to the spot
and prepare panchnama showing delivery of possession was
sufficient for recording a finding that actual possession of
the entire acquired land had been taken and handed over to
BDA. The utilisation of the major portion of the acquired
916 SUPREME COURT REPORTS [2023] 13 S.C.R.
land for the public purpose for which it was acquired is
clearly indicative of the fact that actual possession of the
acquired land had been taken by BDA. Once it is held that
possession of the acquired land was handed over to BDA
on 30-6-2001, the view taken by the High Court that the
acquisition proceedings had lapsed due to non-compliance
with Section 11-A cannot be sustained.”
(Emphasis supplied)
Submissions On Behalf Of The First Respondent
15. Per contra, on behalf of the first respondent, it was submitted that
once the High Court vide order dated 03.01.1986 had allowed him to file
an objection before the Competent Authority, any action taken prior to it
became subject to further orders in the proceedings that followed. In writ
petition No. 9702 of 1987, there was an interim order passed on 20.08.1987
directing that the original petitioner shall not be dispossessed from the land
in dispute. This writ petition was disposed of without holding that actual
possession of the surplus land was taken. Therefore, in the third round
of litigation, when the original petitioner claimed that actual possession
was never taken by the State, the burden was on the State to establish that
possession was taken. The State not only had to prove that actual possession
of the land was taken, but that it was taken in accordance with law. However,
to discharge that burden, no proper documentary evidence was produced by
the State. In these circumstances, the High Court was justified in allowing
the writ petition.
16. It was urged that, admittedly, there was no compliance of the
provisions of Section 10(5) of the Ceiling Act, 1976 as 30 days’ notice was
not given. Moreover, the memorandum of possession did not bear signature
of the landholder. Further, no compensation was paid. Therefore, in absence
of any concrete evidence to indicate that possession was taken in the manner
permissible under Section 10(6) of the Ceiling Act, 1976, conferment of the
benefit of the Repeal Act, 1999 was justified.
17. As regards delay in filing the third writ petition, the learned
counsel for the first respondent submitted that the High Court’s order dated
28.02.2001 was already operating in favour of the first respondent and the
STATE OF U.P. & ANR. v. EHSAN & ANR. 917
MANOJ MISRA, J.
revenue entries were also in his favour, therefore, cause of action to file
third writ petition arose only when revenue entries were disturbed. Since
information about change in revenue entry was received on 25.10.2012, the
writ petition filed promptly thereafter was not barred by latches.
18. In support of his submissions, the learned counsel for the first
respondent relied on those authorities which have been cited in the order
impugned in this appeal.
Discussion And Analysis
19. We have considered the rival submissions and have perused the
record.
20. Before we proceed further, it would be useful to recapitulate facts
in respect thereof there is no dispute. These are:
(i) On 26.11.1977, 5499.29 square meter of land of the first respondent
was declared surplus by the Competent Authority under Section 8(4)
of the Ceiling Act, 1976.
(ii) Notification under Section 10(1) of the Ceiling Act, 1976 was
published on 09.01.1978.
(iii) Notification vesting the surplus land in the State under Section
10(3) was published in the official Gazette on 15.1.1979.
(iv) Questioning the order dated 26.11.1977, a writ petition was filed by
the first respondent in the year 1986 which was dismissed, vide order
dated 3.1.1986, with liberty to raise the plea of jurisdiction before the
Competent Authority.
(v) Objection taken by the first respondent came to be rejected by the
Competent Authority vide order dated 27.03.1987. In the order it was
observed that possession has already been taken.
(vi) The order dated 27.03.1987 was challenged through writ petition
No. 9702 of 1987 wherein, on 20.08.1987, an ex parte interim
order was passed directing that the original petitioner shall not be
dispossessed from the land in dispute. However, while disposing of
the said writ petition, the question of possession was left undecided.
Rather, an open-ended declaration was made that if actual possession
918 SUPREME COURT REPORTS [2023] 13 S.C.R.
has not been taken by the date of commencement of the Repeal Act,
1976, the proceedings under the Ceiling Act, 1976 would abate, but
if possession has been taken, they shall not abate.
21. From the facts noticed above, what is beyond controversy is, that,--
(a) 5499.29 square meter of original petitioner’s land was declared surplus
on 26.11.1977 and, after notification under Section 10(1) dated 9.1.1978,
a notification was issued on 15.1.1979 vesting the land in the State under
Section 10(3) of the Ceiling Act, 1976; (b) neither the order declaring the
land as surplus, nor the notification vesting the land in the State, was set
aside or declared invalid. Even the order of the Competent Authority, dated
27.03.1987, rejecting objection of the original petitioner with regard to
jurisdiction of the ceiling authorities, has not been set aside.
22. 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.
23. The factum of possession is essentially a question of fact. 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.
24. In the instant case, a serious dispute had arisen regarding taking
of actual possession of the surplus land. According to the appellants,
physical possession of the surplus land was taken on 8.3.1979, after serving
notice under Section 10(5) of the Ceiling Act, 1976 on the land holder on
27.02.1979. On the other hand, according to the original petitioner actual
possession of the surplus land was never taken from him though the State
may have taken possession on paper.
25. In the above backdrop, the foremost issue which arises for our
consideration is:
STATE OF U.P. & ANR. v. EHSAN & ANR. 919
MANOJ MISRA, J.
Whether in exercise of writ jurisdiction the High Court should have
refrained from adjudicating the contentious issue with regard to taking of
actual possession of the surplus land from the landholder, when the same
was not decided in the previous round of litigation even though it had arisen
for consideration?
26. Before we proceed further on the aforesaid issue, it would be
useful to examine whether at the time of filing the third writ petition, the
original petitioner had an alternative remedy of a suit to seek appropriate
relief for protecting his rights, if any, over the land in dispute. In this regard,
we may observe that ordinarily a suit to question the orders passed, and
consequential notifications issued, under the Ceiling Act, 1976 is barred,
inasmuch as the Ceiling Act, 1976 is a self-contained Code and any orders
passed thereunder are subject to statutory appeal etc. For the same reason,
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. (See: State of M.P. vs. Ghisilal14; Competent Authority, Calcutta,
Under The Urban Land (Ceiling and Regulation) Act, 1976 and Another
vs. David Mantosh and Others15; and Saurav Jain and Another vs. A.B.P.
Design and Another16).
27. 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.
Because, here, in the earlier round of litigation (i.e., writ petition No.9702
of 1987), the High Court had already made a declaration that if actual
possession of the surplus land has not been taken prior to the cut-off date
(i.e., 11.1.1999) specified in the Repeal Act, 1999, the proceedings under the
Ceiling Act, 1976 would abate, and if actual possession had been taken by the
cut-off date, it will not abate. In view of this conditional declaration, a further
declaration in respect of validity of the orders passed, and notifications
issued, under the Ceiling Act, 1976, was not required, therefore a court of
competent jurisdiction could have entertained a suit and grant such relief, as
14 (2021) SCC Online SC 1098
15 (2020) 12 SCC 542
16 (2021) SCC Online SC 552
920 SUPREME COURT REPORTS [2023] 13 S.C.R.
may be warranted, dependent on its determination whether actual possession
of the surplus land was taken or not, before the cut-off date. In this view of
the matter, in our considered view, on the cause of action disclosed in the
third writ petition, the first respondent could have instituted a suit to protect
his interest, if any, in the land in dispute.
28. We are conscious of the law that existence of an alternative remedy
is not an absolute bar on exercise of writ jurisdiction. More so, when a
writ petition has been entertained, parties have exchanged their pleadings/
affidavits and the matter has remained pending for long. In such a situation
there must be a sincere effort to decide the matter on merits and not relegate
the writ petitioner to the alternative remedy, unless there are compelling
reasons for doing so. One such compelling reason may arise where there
is a serious dispute between the parties on a question of fact and materials/
evidence(s) available on record are insufficient/inconclusive to enable the
Court to come to a definite conclusion.
29. Bearing the aforesaid legal principles in mind, we would have
to consider whether, in the facts of the case, the High Court ought to have
dismissed the third writ petition of the first respondent and relegate him
to a suit as there existed a serious dispute between the parties regarding
taking of possession. More so, when the High Court, in the earlier round of
litigation, refrained from taking up the said issue even though it had arisen
between the parties.
30. No doubt, in a writ proceeding between the State and a landholder,
the Court can, on the basis of materials/evidence(s) placed on record,
determine whether possession has been taken or not and while doing so, it
may draw adverse inference against the State where the statutory mode of
taking possession has not been followed [See State of UP vs. Hari Ram
(supra)]. However, where possession is stated to have been taken long ago
and there is undue delay on the part of landholder in approaching the writ
court, infraction of the prescribed procedure for taking possession would
not be a determining factor, inasmuch as, it could be taken that the person
for whose benefit the procedure existed had waived his right thereunder
[See State of Assam vs. Bhaskar Jyoti Sarma, (supra)]. In such an event,
the factum of actual possession would have to be determined on the basis
of materials/evidence(s) available on record and not merely by finding
STATE OF U.P. & ANR. v. EHSAN & ANR. 921
MANOJ MISRA, J.
fault in the procedure adopted for taking possession from the land holder.
And if the writ court finds it difficult to determine such question, either for
insufficient/ inconclusive materials/evidence(s) on record or because oral
evidence would also be required to form a definite opinion, it may relegate
the writ petitioner to a suit, if the suit is otherwise maintainable.
31. In the instant case, the original petitioner had knowledge that
5499.20 square meter of his land was declared surplus by order dated
26.11.1977. Yet, this order was challenged through writ petition not before
the year 1986. What happened in between is not disclosed. Even if we assume
that the third writ petition was based on a separate cause of action, still there
could have been a whisper as to what was the reason for such long delay
in filing the first writ petition, particularly when the original petitioner was
throughout aware of State’s case that possession had been taken in the year
1979 after publication of the vesting notification. The only explanation, if
any, for this delay can be found in paragraph 4 of the writ petition, where
it is stated that order dated 26.11.1977 was ex-parte. Even if we accept that
order dated 26.11.1977 was ex parte, there is no disclosure in the writ petition
as to when it came to the knowledge of the original petitioner.
32. What is even more interesting is that in the third writ petition there
is no specific statement that recital in the order, dated 27.03.1987, with regard
to taking of possession is incorrect. Though it is stated in paragraph 9 of the
writ petition that under orders dated 26.11.1977 and 27.3.1987 possession
was never taken. It be noted that possession was not taken under order dated
27.03.1987. Rather, it is alleged to have been taken pursuant to notification
dated 15.1.1979. Thus, by the time third writ petition was filed, a vesting
notification had already been published in the official gazette on 15.1.1979.
Further, the Competent Authority’s order dated 27.03.1987 categorically
stated that State has taken possession of the land. Yet, there is no statement
in the writ petition that order dated 27.03.1987 bears an incorrect recital with
regard to taking of possession. For all the reasons above, in our view, the
High Court ought to have been circumspect about the claim of the original
petitioner that possession was not taken right up to the enforcement of the
Repeal Act, 1999.
33. As far as documentary material placed by the original petitioner
is concerned, we notice that no Khatauni or Khasra extract of the period
922 SUPREME COURT REPORTS [2023] 13 S.C.R.
starting from 1979 up to 1987 was filed. The third writ petition annexes
Khatauni or Khasra extracts of the period 1405 to 1417 Fasli, that is of the
year 1998 to the year 2010. In addition to those documents, some revenue
receipts of the period starting from 1989 have been filed. According to the
State, possession of the surplus land was taken in the year 1979. If it were
so, even if the petitioner entered into possession anytime thereafter, may
be on the strength of the ex parte interim order dated 20.08.1987, the same
would not defeat the right of the State in view of decision of this Court
in Indore Development Authority (supra) where, in paragraph 258 of the
judgment, it was held that once title of the land vests in the State, consequent
to acquisition and taking of possession, even if the landholder has retained
possession or otherwise trespassed upon it after possession has been taken
by the State, he is just a trespasser and his possession, if any, would be on
behalf of the owner i.e., the State.
34. At this stage, we may notice to reject another argument made
on behalf of the respondent, which is, that the High Court had granted an
interim order, dated 20.08.1987, protecting original petitioner’s possession,
therefore, it is to be assumed that possession was not taken from him by
that time. No doubt, the original petitioner succeeded in obtaining an ex
parte interim order but there is no material on record to suggest that this
interim order was confirmed after considering State’s objection. Moreover,
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. In these circumstances as
also that no documentary evidence was filed regarding original petitioner’s
possession between the years 1979 and 1987, in our view, the interim order
did not carry much evidentiary value to prove that possession was not taken
prior to the year 1987.
Conclusion
35. 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
STATE OF U.P. & ANR. v. EHSAN & ANR. 923
MANOJ MISRA, J.
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. Instead, the writ petitioner
should have been relegated to a suit.
36. In view of the above conclusion, the appeal is allowed. The
impugned order passed by the High Court is set aside. The first respondent’s
writ petition is dismissed without prejudice to his right to institute a suit.
Parties to bear their own costs.
37. It is clarified that we have not expressed any binding opinion as
to whether possession of the surplus land was taken by the State before the
cut-off date as specified in the Repeal Act, 1999. Observations, if any, in this
regard are purely for the purpose of deciding whether the High Court should
have entertained the writ petition or not. Hence, if any suit is instituted the
same shall be decided on its own merits.
Headnotes prepared by: Appeal allowed.
Ankit Gyan
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