Radhey Mohan Srivastava and Others vs State of U.P. and Others

Hon''ble Prakash Krishna, J.—Heard the learned counsel for the petitioners and Shri Anil Kumar Singh, learned standing counsel for the State of U.P.-respondent no. 1.

The present writ petition arises out of execution proceedings of a decree passed in Original Suit No. 584 of 1984 filed by Smt. Suraj Kumari, predecessor interest of the petitioners whereby the suit for specific performance of contract to sell was decreed. The decree holders/petitioners applied for execution of the said decree. An objection u/s 47 of the C.P.C. was filed by the judgment-debtor raising various pleas. The plea which has been found favour with the Executing Court and the Revisional Court is that the land in dispute was declared as surplus land within the provisions of Urban Land (Ceiling and Regulation ) Act, 1976 (hereinafter referred to as ''the Act'') and it is the State of U.P. whose name has been recorded in the revenue record and the judgment-debtor has now no concern with it.

Challenging the aforesaid two orders passed by the courts below, the present writ petition has been filed.

Shri H.M. Srivastava, learned counsel for the petitioners raised only one point in support of the writ petition. He submits that the possession of the land in question has not been taken by the State Government and the proceedings upto stage of Section 10(5) of the Act has been done. Elaborating the argument, he submits that mere recording of the name of State of U.P. in revenue record is not sufficient.

In reply, learned standing counsel submits that the petitioners had filed another writ petition in this Court being Writ Petition No. 16184 of 2006 which was disposed of by the order dated 24th March, 2006 directing the District Magistrate, Allahabad to examine the matter as contained in the application/representation of the petitioners. The District Magistrate, Allahabad consequently, examined the matter and passed the order dated 30th October, 2006 whereby he has held that the possession of the disputed land has been taken over and it has been handed over to Allahabad Development Authority whose name has also been mutated in the revenue record.

Considered the respective submissions of the learned counsel for the parties.

Learned counsel for the petitioners has placed reliance upon a Division Bench decision of this Court in Chabi Nath Vs. State of U.P., Director, Urban Land Ceiling Government of Uttar Pradesh and Competent Authority, Urban Land Ceiling, . He submits that if the possession has not been taken over, in view of the Repeal Act, 1999 the proceedings under the aforesaid Act shall stand abated.

The above Division Bench has held on the facts of that case that even though there has been entry in favour of the State in revenue records without taking action to take possession u/s 10(5) and 10(6) (i.e. actual physical possession) the actual tenure holder can not be deprived of the benefit of the Repeal Act. The ratio laid down therein is not applicable to the facts of the present case for the reasons more than one.

As stated herein above, the matter was remitted to the District Magistrate, Allahabad to examine the question whether the possession has been delivered or not in the light of the representation filed by the petitioners. Admittedly, the District Magistrate, Allahabad has examined the matter and passed the order dated 30th October, 2006 holding that the possession has been taken over from the owner and the possession of land in question has been handed over to Allahabad Development Authority. The said order has attained finality as there is nothing on record to show that it has been challenged by the petitioners.

Secondly, it is for the holder or the owner of the land in question who can challenge the vesting of land in the State of U.P. on the ground that the possession was not taken over. In the case on hand, the judgment-debtor has not come forward with the case that the possession has not been taken over from her. The petitioners who are decree holders of a decree for specific performance of contract to sell has no say in the matter as to whether the possession has been actually taken over or not when true owner has not come forward to dispute the handing over of possession to the State Government.

In view of the above, I do not find any merit in the submissions of learned counsel for the petitioners that the possession has not been taken over or that the petitioners are entitled to get the benefit of Repeal Act, 999. I do not find any merit in the present writ petition.

The writ petition is dismissed. No order as to costs.