# Mithai Lal & Ors v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 414
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-16
- **Case number:** Writ C No. 38977 of 2022
- **Bench:** Mahesh Chandra Tripathi, Vivek Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mithai-lal-ors-v-state-of-u-p-ors-49838
- **Pages:** 10

## Headnote

A. Constitution of India - Article 226 -
Writ - Maintainability - Laches - Land
was
declared
as
surplus
land
on
03.06.1981 u/s 8(3) of the Urban Land
(Ceiling and Regulation) Act, 1976 -
Publication was too made - No remedy of
statutory appeal u/s 33 of Ceiling Act was
availed - Application filed u/s 45 of the
Ceiling Act was too rejected in 1998 -
Effect - Petitioners have raised the issue
of possession and notice u/s 10 (6) of the
Ceiling Act after lapse of more than 40
years and there is no explanation for the
delay - Effect - The equitable doctrine,
namely, "delay defects equity" has its
fullest application in the matter of grant of
relief under Article 226 of the Constitution
- Shah Hyder Beig's case relied upon -
Held, writ petition is highly time barred
and no reason for the inordinate delay has
been given in the writ petition. (Para 10,
12 and 19)

Writ petition dismissed . (E-1)

List of Cases cited:

## Text

414 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 3 ILRA 414
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2023

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE VIVEK KUMAR SINGH, J.

Writ C No. 38977 of 2022

Mithai Lal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Yadavendra Kumar Yadav, Ms. Poonam
Yadav, Sri Raj Karan Yadav

Counsel for the Respondents:
C.S.C., Sri Ravi Prakash Pandey

A. Constitution of India - Article 226 -
Writ - Maintainability - Laches - Land
was
declared
as
surplus
land
on
03.06.1981 u/s 8(3) of the Urban Land
(Ceiling and Regulation) Act, 1976 -
Publication was too made - No remedy of
statutory appeal u/s 33 of Ceiling Act was
availed - Application filed u/s 45 of the
Ceiling Act was too rejected in 1998 -
Effect - Petitioners have raised the issue
of possession and notice u/s 10 (6) of the
Ceiling Act after lapse of more than 40
years and there is no explanation for the
delay - Effect - The equitable doctrine,
namely, "delay defects equity" has its
fullest application in the matter of grant of
relief under Article 226 of the Constitution
- Shah Hyder Beig's case relied upon -
Held, writ petition is highly time barred
and no reason for the inordinate delay has
been given in the writ petition. (Para 10,
12 and 19)

Writ petition dismissed . (E-1)

List of Cases cited:

1. Lalla & ors. Vs St. of UP & ors.; 2014 AIR
(107) 484

2. St. Vs Hari Ram; JT 2013 (4) SC 275

3. St. of Assam Vs Bhaskar Jyoti Sarma & ors.;
(2015) 5 SCC 321

4. W.A. No.91/2006; Lalji Choubey Vs The St.
of M.P. & anr.

5. Writ-C No.41628 of 2011; Smt. KaLawati
Devi Vs St. of U.P. & ors. decided on
18.1.2023

6. Writ -C No.69115 of 2009; Lal Singh & Ors.
Vs Competent Authority Urban Land Ceiling and
Regulation & Ors. decided on 23.1.2023

7. Dehri Rohtas Light Railway Vs District Board
Bhojpur & ors.; (1992) 2 SCC 598

8. Shivgonda Anna Patil Vs St. of Mah.; (1999) 3
SCC 5

9. Municipal Council, Ahmednagar Vs Shah
Hyder Beig; (2000) 2 SCC 48

10. U.P. Jal Nigam & anr. Vs Jaswant Singh &
anr.; (2006) 11 SCC 464

11. Tukaram Kana Joshi & ors. Vs MIDC & ors.;
(2013) 1 SCC 353

12. St. of Assam Vs Bhaskar Jyoti Sharma &
ors.; (2015) 5 SCC 321

13. Shiv Ram Singh Vs St. of U.P. & ors.; 2015
(7) ADJ 630

14. Kapilaben Ambalal Patel & ors. Vs St. of
Guj.; 2021 (12) SCC 95

15. Writ C No.41628 of 2011; Smt. KaLawati
Devi Vs St. of UP & ors. decided on
18.01.2023

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.
&
Hon'ble Vivek Kumar Singh, J.)
3 All. Mithai Lal & Ors. Vs. State of U.P. & Ors.
415

1. Heard Sri Raj Karan Yadav, learned
counsel for the petitioners; Sri Raj Mohan
Upadhyay, learned Standing Counsel for
State respondent nos.1 to 2 and Sri Ravi
Prakash Pandey, learned counsel for
Varanasi Development Authority.

2. By means of this petition, the
petitioners have prayed for following
reliefs:-

"A. Issue a writ, order or
direction in nature of certiorari for
quashing the order dated 18.03.1998 as
well as 20.04.2022 passed by respondent
No.2 as Annexure Nos.4 &5 in the
aforesaid writ petition.

B. Issue a writ, order or direction
in the nature of mandamus directing the
respondents to abate the proceeding of
Case No.323/1613/2166/80-81 (State vs.
Musamat, wife of Bachchan Singh) Village
Susuwahi,
Pargana
Dehat
Ammanat,
District Varanasi under Section 3 (2) (A) of
the Urban Land (Ceiling and Regulation)
Repeal Act, 1999 (Act No.15 of 1999).

C. Issue a writ, order or direction
in the nature of mandamus directing the
respondents to correct the revenue record in
name of the land holder situated in Village
Susuwahi,
Pargana
Dehat
Ammanat,
District Varanasi."

3. This writ petition under Article 226
of the Constitution of India has been
reported by the office to be 142 days
beyond the usual period of 90 days of
passing of the impugned order.

4. The facts of the case in short are
that father of petitioner nos.1 to 4 and
grand-father
of
petitioner
nos.5-12
Bachchan died before 17.02.1976. For
declaring the land of original owner namely
Bachchan
to
be
surplus,
the
Collector/Competent
Authority,
Urban
Land Ceiling, Varanasi instituted a case
under the provisions of the Urban Land
(Ceiling and Regulation) Act, 19761 and
therefore, mother of the petitioner nos.1 to
4 filed ceiling return under Section 6 (1) of
the Ceiling Act. The case was registered as
Case No.323/1613/2166/80-81 (State vs.
Musamat
Kewali,
Village
Susuwahi,
Pargana Dehat Ammanat, District Varanasi)
and a notice under Section 8 (3) of the
Ceiling Act was served upon the original
owner on 10.3.1981. She did not submit
any objection to the notice within 30 days
and as such, it was presumed that she did
not have any objection to the said notice.
Finally, the Competent Authority declared
the land owned by the original owner to the
extent of 7097.49 square meters to be
surplus on 03.6.1981 and published a draft
statement under Section 9 of the Ceiling
Act and a notification in the official gazette
as per the requirement of Section 10(1) of
the Ceiling Act. Thereafter, describing the
details of surplus land in letter dated
03.6.1981
(Annexure-1
to
the
writ
petition), the Collector was directed to
carry
out
the
proceeding
of
taking
possession over the land in question.

5. Learned counsel for the petitioners
submits
that
father/grand
father
of
petitioners died before 17.02.1976. The
mother of the petitioner nos.1 to 4 filed
ceiling return under Section 6 (1) of the
Ceiling Act. The petitioners are in actual
possession over the land in question.
Neither
the
respondents
have
taken
possession of the said land from the
original
owner
nor
she
had
given
possession to the respondents. No third
party interest has been created by the
respondents in the aforesaid land till date.
The
State
Government
issued
a
Government order on 02.4.1994 directing
416 INDIAN LAW REPORTS ALLAHABAD SERIES
to all competent authorities of the State of
U.P. to stop further proceedings in respect
of agricultural land, which is declared as
ceiling land under Section 8 (4) and notice
issued under Section 10 (5) but no
proceeding under Section 10 (6) for taking
possession has been initiated. In pursuance
of
the
said
Government
order,
the
Competent Authority has not completed
proceeding under Section 10 (6) in respect
of all agricultural land of the petitioners till
18.3.1999 and during the pendency of
proceeding under Section 10 (6), the Act
No.33 of 1976 has been repealed by Urban
Land (Ceiling and Regulation) Repeal Act,
19992 with effect from 18.3.1999 and
hence, all the proceedings of this case
against the original owner are liable to be
abated under Section 3/4 of the Repeal Act.
It is submitted that earlier the petitioners
had
also
approached
this
Court
by
preferring Writ C No.35232 of 2021
(Mithai Lal and 11 others vs. State of UP
and
2
others)
for
a
mandamus
commanding
the
respondents
not
to
dispossess them from the land in dispute
and a coordinate Bench of this Court had
disposed of the writ petition on 12.1.2022
with liberty to the petitioners to approach
authority by filing representation within
two months. In support of his submission,
he has placed reliance on the judgements
rendered in the case of Lalla and ors vs.
State of UP and ors3 and State vs. Hari
Ram4.

6.
Per
contra,
learned
Standing
Counsel has raised a preliminary objection
regarding maintainability of the writ
petition on the issue of latches that the
present writ petition has been filed after
almost 40 years of the taking over of the
possession and consequently, the same does
not deserve to be entertained. He has
submitted that against the predecessor-ininterest of the petitioners, the proceeding
under the the Ceiling Act was drawn and
notification under Section 10 (3) of the
Ceiling Act was duly notified, followed by
notice under Section 10 (5) of the Ceiling
Act. The proceedings were finalised way
back under the Ceiling Act and as such, the
writ petition is liable to be dismissed on the
ground of delay and laches. In support
whereof, he has placed reliance upon a
decision of Supreme Court reported in
State of Assam Vs. Bhaskar Jyoti Sarma
and others5. He has further placed reliance
upon a decision of Division Bench of this
Court passed in Lalji Choubey Vs. The
State of M.P. and another6 wherein it was
observed that once a compliance under
Section 10(5) of the Act, 1976 has been
done then it can be considered that
possession has been duly taken over. He
has also placed reliance on the judgments
in Smt. Kalawati Devi v. State of U.P. &
Ors.7
and
Lal
Singh
&
Ors.
v.
Competent
Authority
Urban
Land
Ceiling and Regulation & Ors.8

7. We have considered the rival
submissions and perused the material
placed on record.

8. We find that the father/grand father
of petitioners died before 17.02.1976 and
therefore, mother of the petitioner nos.1 to
4 filed ceiling return under Section 6 (1) of
the Ceiling Act. The proceeding under the
Ceiling Act was initiated by the Competent
Authority,
registered
as
Case
No.323/1613/2166/80-81
(State
vs.
Musamat Kewali). Thereafter, the notice
under Section 8 (3) of the Ceiling Act was
served upon the original owner on
10.3.1981 to which she did not submit any
objection. Finally, the Competent Authority
had declared the land owned by the original
owner to the extent of 7097.49 square
3 All. Mithai Lal & Ors. Vs. State of U.P. & Ors.
417
meters to be surplus on 03.6.1981 and
published the draft statement under Section
9 of the Ceiling Act and a notification in
the official gazette as per the requirement
of Section 10(1) of the Ceiling Act. The
Collector was directed to carry out the
proceeding for taking possession over the
land in questioner vide letter dated
03.6.1981.

9. It is not disputed that the notice
under Section 10 (5) of the Ceiling Act was
issued and the same was not objected by
the land owner. Therefore, there was no
occasion for issuing notice under Section
10 (6) to the land owner. Record also
reflects that Mithai Lal (petitioner No.1),
Lalman, Rakesh Bahadur, Man Bahadur,
Lal Bahadur, Vijai Bahadur sons of late
Bachchan and widow Kewali Devi, wife of
late Bachchan had moved applications
supported by an affidavit on 07.2.1997 and
21.1.1998 in the ceiling proceeding stating
therein that they had not received notices
under Section 8 (3) and Section 9 of the
Ceiling Act. They were entitled to have
1500 sq. meters land individually and
further as there was certain discrepancy in
the land use report, therefore, after
summoning the master plan the authority
has to confer rights to the applicants qua to
their individual shares and accordingly, the
order dated 05.7.1981 under Section
Section 8 (4) of the Ceiling Act was liable
to be set aside. Suffice to indicate that the
said relief was pressed under Section 45 of
the
Ceiling Act,
which
pertains
to
correction
of
clerical
errors.
While
considering
the
said
application
on
18.03.1998 the Prescribed Authority, Urban
Land Ceiling had opined that the matter in
fact would not fall under Section 45 of the
Ceiling Act but in case the petitioners are
aggrieved with the order dated 05.6.1981
the efficacious remedy is to prefer an
appeal under Section 33 and further
observed that the notification under Section
10 (3) is already notified and the disputed
land was declared surplus way back on
03.6.1981 and vested in the State free from
all encumbrances and accordingly, the
applications dated 07.2.1992 and 21.1.1998
were rejected on 18.3.1998.

10. We further find that there is
nothing
on
record
to
indicate
that
aforementioned orders were ever subjected
to challenge by the petitioners and
admittedly, the appeal under Section 33 of
the Ceiling Act was also not preferred. We
may also observe that the first petitioner
moved the aforementioned applications
alongwith other claimants under Section 45
of the Ceiling Act, which were rejected in
the year 1998 and the same was in fact
attained finality. Since then they have not
agitated the matter and they all waited for
long time. All of sudden they woke up from
the deep slumber and preferred Writ C
No.35232 of 2021 (Mithai Lal and 11
others vs. State of UP and 2 others) for
mandamus commanding the respondents
not to dispossess the petitioners from the
land in dispute in pursuance of the
provisions of the Ceiling Act and the same
was disposed of by the Division Bench on
12.1.2022 with liberty to the petitioners to
approach
the
respondents
by
filing
representation. In response to the said
order, the order dated 20.4.2022 has been
passed
by
the
Prescribed
Authority
indicating therein that after compliance of
Sections 9, 10 (1), 10 (3) and 10 (5) the
land was declared surplus. Even the names
of the erstwhile owners were also expunged
and the name of the State was mutated on
25.1.1992. Consequently, through letter
No.147 dated 12.12.1997 the surplus land
was also handed over to the Varanasi
Development Authority. Therefore, the
418 INDIAN LAW REPORTS ALLAHABAD SERIES
Prescribed Authority under Urban Land
Ceiling, Varanasi has no jurisdiction to
proceed
further
in
the
matter
and
accordingly,
the
representation
was
disposed of on 20.4.2022. It is evident that
the petitioners have raised the issue of
possession and notice under Section 10 (6)
of the Ceiling Act after lapse of more than
40 years and there is no explanation for the
delay.

11. The said aspect of the matter has
been considered in detail in Dehri Rohtas
Light
Railway
Vs.
District
Board
Bhojpur and Others9, wherein Hon'ble
Supreme Court observed in paragraph No.
13 as under :-

"The rule which says that the
Court may not inquire into belated and stale
claim is not a rule of law but a rule of
practice based on sound and proper
exercise of discretion. Each case must
depend upon its own facts. It will all
depend on what the breach of the
fundamental right and the remedy claimed
are and how the delay arose. The principle
on which the relief to the party on the
grounds of laches or delay is denied is that
the rights which have accrued to others by
reason of the delay in filing the petition
should not be allowed to be disturbed
unless there is reasonable explanation for
the delay. The real test to determine delay
in such cases is that the petitioner should
come to the writ court before a parallel
right is created and that the lapse of time is
not attributable to any laches or negligence.
The test is not to physical running of time.
Where the circumstances justifying the
conduct exists, the illegality which is
manifest cannot be sustained on the sole
ground of laches. The decision in Trilok
Chand (supra) relied on is distinguishable
on the facts of the present case. The levy is
based on the net profits of the railway
undertaking was beyond the authority and
the illegal nature of the same has been
questioned though belatedly in the pending
proceedings after the pronouncement of the
High Court in the matter relating to the
subsequent years. That being the case, the
claim of the appellant cannot be turned
down on the sole ground of delay. We are
of the opinion that the High Court was
wrong in dismissing the writ petition in
limine and refusing to grant the relief
sought for. We however agree that suit has
been rightly dismissed."
(Emphasis added)

12. Similarly, Hon'ble Apex Court has also
considered the delay and laches pertaining to
ceiling matters in Shivgonda Anna Patil Vs.
State of Maharashtra10 wherein the petitioner
had approached after considerable delay of ten
years after the land was declared surplus and
vested in the State Government and the writ
petition was summarily dismissed by the High
Court and the same was also approved by the
Apex Court. Hon'ble Apex Court has also
considered the delay and laches in preferring
the petition under Article 226 of Constution of
India in Municipal Council, Ahmednagar Vs.
Shah Hyder Beig11 and held that the equitable
doctrine, namely, "delay defects equity" has its
fullest application in the matter of grant of relief
under Article 226 of the Constitution.

13. The Supreme Court in U.P. Jal
Nigam and Another Vs. Jaswant Singh
and Another12 referred, with approval the
law relating to laches, as summarized in
Halsbury's Law of England. The relevant
extract from the aforesaid judgement is
reproduced below :-

"12. The statement of law has
also been summarized in Halsbury's Laws
of England, Para 911 , pg. 395 as follows :
3 All. Mithai Lal & Ors. Vs. State of U.P. & Ors.
419

"In determining whether there has
been such delay as to amount to laches, the
chief points to be considered are :

(i) acquiescence on the claimant's
part; and

(ii) any change of position that
has occurred on the defendant's part.

Acquiescence in this sense does
not mean standing by while the violation of
a right is in progress, but assent after the
violation has been completed and the
claimant has become aware of it. It is
unjust to give the claimant a remedy where,
by his conduct, he has done that which
might fairly be regarded as equivalent to a
waiver of it; or where by his conduct and
neglect, though not waiving the remedy, he
has put the other party in a position in
which it would not be reasonable to place
him if the remedy were afterwards to be
asserted. In such cases lapse of time and
delay are most material. Upon these
considerations rests the doctrine of laches."
(Emphasis added)

14. In Tukaram Kana Joshi and
others Vs. MIDC and others13, the
Supreme Court observed as follows :-

"12. The State, especially a
welfare State which is governed by the
Rule of Law, cannot arrogate itself to a
status beyond one that is provided by the
Constitution. Our Constitution is an organic
and flexible one. Delay and laches is
adopted as a mode of discretion to decline
exercise of jurisdiction to grant relief.
There is another facet. The Court is
required to exercise judicial discretion. The
said discretion is dependent on facts and
circumstances of the cases. Delay and
laches is one of the facets to deny exercise
of discretion. It is not an absolute
impediment. There can be mitigating
factors, continuity of cause action, etc. That
apart, if whole thing shocks the judicial
conscience, then the Court should exercise
the discretion more so, when no third party
interest is involved. Thus analysed, the
petition is not hit by the doctrine of delay
and laches as the same is not a
constitutional limitation, the cause of action
is continuous and further the situation
certainly shocks judicial conscience.

13. The question of condonation
of delay is one of discretion and has to be
decided on the basis of the facts of the case
at hand, as the same vary from case to case.
It will depend upon what the breach of
fundamental right and the remedy claimed
are and when and how the delay arose. It is
not that there is any period of limitation for
the Courts to exercise their powers under
Article 226, nor is it that there can never be
a case where the Courts cannot interfere in
a matter, after the passage of a certain
length of time. There may be a case where
the demand for justice is so compelling,
that the High Court would be inclined to
interfere in spite of delay. Ultimately, it
would be a matter within the discretion of
the Court and such discretion, must be
exercised fairly and justly so as to promote
justice and not to defeat it. The validity of
the party's defence must be tried upon
principles substantially equitable. (Vide:
P.S. Sadasivaswamy vs. State of T.N. AIR
1974 SC 2271; State of M.P. & Others. vs.
Nandlal Jaiswal & Others., AIR 1987 SC
251; and Tridip Kumar Dingal & Others.
vs. State of West Bengal & Others, (2009)
1 SCC 768;)

14. No hard and fast rule can be
laid down as to when the High Court
should refuse to exercise its jurisdiction in
favour of a party who moves it after
considerable delay and is otherwise guilty
of laches. Discretion must be exercised
judiciously and reasonably. In the event
that the claim made by the applicant is
420 INDIAN LAW REPORTS ALLAHABAD SERIES
legally
sustainable,
delay
should
be
condoned.
In
other
words,
where
circumstances justifying the conduct exist,
the illegality which is manifest, cannot be
sustained on the sole ground of laches.
When substantial justice and technical
considerations are pitted against each other,
the cause of substantial justice deserves to
be preferred, for the other side cannot claim
to have a vested right in the injustice being
done, because of a non- deliberate delay.
The court should not harm innocent parties
if their rights have infact emerged, by delay
on the part of the Petitioners. (Vide: Durga
Prasad v. Chief Controller of Imports and
Exports & Others, AIR 1970 SC 769;
Collector, Land Acquisition, Anantnag &
Another vs. Mst. Katiji & Others, AIR
1987 SC 1353; Dehri Rohtas Light Railway
Company Ltd. vs. District Board, Bhojpur
& Others, AIR 1993 SC 802; Dayal Singh
& Others vs. Union of India & Others, AIR
2003 SC 1140; and Shankara Co-op
Housing Society Ltd. vs. M. Prabhakar &
Others, AIR 2011 SC 2161)."

15. In State of Assam vs. Bhaskar
Jyoti Sharma and others14 it was held by
the Apex Court as under:-

"16. The issue can be viewed from
another angle also. 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 of Section 10(5). If actual
physical possession was taken over from the
erstwhile land owner on 7th December,
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's case (supra). That decision
does not, in our view, lend much assistance
to the respondents. We say so, because this
Court was in Hari Ram's case (supra)
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 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 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.
3 All. Mithai Lal & Ors. Vs. State of U.P. & Ors.
421

19. In support of the contention
that the respondents are even today in
actual physical possession of the land in
question reliance is placed upon certain
electricity bills and bills paid for the
telephone connection that stood in the
name of one Mr. Sanatan Baishya. It was
contended that said Mr. Sanatan Baishya
was none other than the caretaker of the
property of the respondents. There is,
however, nothing on record to substantiate
that assertion. The telephone bills and
electricity bills also relate to the period
from 2001 onwards only. There is nothing
on record before us nor was anything
placed before the High Court to suggest
that between 7th December, 1991 till the
date the land in question was allotted to
GMDA in December, 2003 the owner or his
legal heirs after his demise had continued
to be in possession. All that we have is
rival claims of the parties based on
affidavits
in
support
thereof.
We
repeatedly asked learned counsel for the
parties whether they can, upon remand on
the analogy of the decision in the case of
Gyanaba Dilavarsinh Jadega (supra),
adduce any documentary evidence that
would enable the High Court to record a
finding in regard to actual possession.
They were unable to point out or refer to
any such evidence. That being so the
question
whether
actual
physical
possession was taken over remains a
seriously disputed question of fact which
is
not
amenable
to
a
satisfactory
determination by the High Court in
proceedings under Article 226 of the
Constitution no matter the High Court
may in its discretion in certain situations
upon such determination. Remand to the
High Court to have a finding on the
question of dispossession, therefore, does
not appear to us to be a viable solution."
(Emphasis supplied by us)

16. The aforesaid judgment of Hon'ble
Supreme Court in Bhaskar Jyoti Sharma
and others (supra) has been followed by a
coordinate Bench of this Court in the case
of Shiv Ram Singh vs. State of U.P. and
others15 wherein the writ petition was
dismissed on the ground of laches with
following observations:-

"We must also advert to another
aspect of the matter particularly having
regard to the recent decision of the
Supreme Court in Bhaskar Jyoti Sarma
(supra). The petitioner moved the first writ
petition in 2002 nearly three years after the
Repeal Act had come into force. After the
earlier writ petition was disposed of by
directing the District Magistrate to pass an
order on the representation of the petitioner,
an order was passed by the District
Magistrate on 10 May 2007. The petitioner
thereafter waited for a period of over two
years until the present writ petition was
filed in July 2009. If the petitioner had been
dispossessed of the land without due notice
under Section 10(5), such a grievance could
have been raised at the relevant time. As a
matter of fact, it has been the case of the
State all along that a notice under Section
10(5) was, in fact, issued in the present
case which would be borne out from the
original file which has been produced
before the Court. The issue is whether such
a grievance could be made long after,
before the Court. The petitioner had waited
for nearly three years after the Repeal Act
came into force to file the first writ petition
and thereafter for a period of over two
years
after
the
disposal
of
the
representation despite the finding of the
District Magistrate that possession was
taken over on 25 June 1993. In our view,
such a belated challenge should not, in any
event, be entertained."
(Emphasis supplied by us)
422 INDIAN LAW REPORTS ALLAHABAD SERIES

17. In Kapilaben Ambalal Patel and
Others Vs. State of Gujarat16, the Apex
Court has considered the delay and laches
in detail and declined to accept the pleas
setup by the legal heirs/representatives of
the original land holder on the ground of
inordinate delay. Relevant paragraph of the
judgement is reproduced herein below:-

"Feeling
aggrieved,
the
landowners have approached this Court. It
is urged that there is no tittle of evidence to
substantiate the fact asserted by the
respondent State that physical possession of
the land in question has been taken over on
20-3-1986.
It
was
merely
a
paperpossession in the form of possession
panchnama. According to the appellants, de
facto possession of the subject land as on
the date of the Repeal Act is crucial and
entails in abatement of all the actions of the
State authorities under the 1976 Act. Mere
issuance of notification under Section 10(3)
of the 1976 Act regarding deemed vesting
of the land in the State is not enough for the
purposes of the Repeal Act. Reliance has
been placed on Vinayak Kashinath Shilkar
Vs. Collector & Competent Authority,
(2012) 4 SCC 718, State of U.P. Vs. Hari
Ram (2013) 4 SCC 280, Gajanan Kamlya
Patil vs. Additional Collector & Competent
Authority (ULC) (2014) 12 SCC 523 and
Mangalsen Vs. State of U.P. (2014) 15 SCC
332. The consistent view of this Court is
that physical possession must be taken by
the State authorities, failing which the
proceedings shall abate on account of the
Repeal Act. The appellants have relied on
revenue records to show that the continued
possession
remained
with
the
appellants/landowners
even
after
the
possession panchnama was made on 20-31986.
The
revenue
entries
have
presumptive value and the respondent State
had failed to rebut the same.

"Furthermore, in the grounds all
that is asserted is that the High Court erred
in holding that there was delay of 14 years
in filing of writ petition and in not
appreciating that the notice under Section
10(5) of the 1976 Act dated 23-1-1986, was
not served upon Ambalal Parsottambhai
Patel as he had already expired on 31-121985 and notice sent to him was returned
bacy on 2-2-1986 unserved with remark
"said owner has expired". Further, the legal
heirs of Ambalal Parsottambhai Patel ought
to have been served with the said
notice.........Be that as it may, we are not
inclined to reverse the conclusion recorded
by the Division Bench of the High court
that the writ petition filed by the appellants
was hopelpessly delayed and suffered from
laches. That is a possible view in the facts
of the present case." .

18. Recently, the coordinate Bench of
this Court has also considered the Ceiling
Act and Repeal Act qua to the subsequent
purchaser in Smt. Kalawati Devi vs. State
of UP and others17 and dismissed the writ
petition on 18.1.2023 on the ground that the
owner never protested or agitated his
dispossession before any authority or
Court. In the circumstances, the subsequent
purchaser cannot raise challenge to the
procedure of dispossession at belated stage
on the strength of a sale deed being void
ab-initio. Relevant paragraph nos.22, 23
and 24 of the judgement are reproduced
herein below:-

"22. The question of issuing
notice under Section 10(5) to the petitioner
after 16 years from the date of notice under
Section 10(1) of the Act does not arise. The
State had taken possession from the land
owner way back in 1981. The subsequent
transfer of the land in 1994, followed by
mutation of the name of the petitioner,
3 All. Kailash Prasad Tewari Vs. State of U.P. & Ors.
423
would have no bearing on the right of the
petitioner. The transfer of the surplus land
by the erstwhile owner, in the eye of law
being nullity i.e. void ab-initio would not
confer any right or title upon the petitioner.
The possession of the petitioner after the
proceedings concluding under the Act,
upon the State taking possession, would
merely be a case of encroachment of State
land. The Repeal Act would not come to
the assistance of the petitioner, rather, the
case of the petitioner would not fall within
the ambit and scope of the Repeal Act
being subsequent purchaser of the surplus
land after notification under Section 10(1) /
10(3) of the Act.

23. Having regard to the facts and
circumstances of the case, petitioner lacks
locus, and any case, the proceedings came to
be set up belatedly by the petitioner in 2006
by approaching this Court and filing a
petition, being Writ Petition No. 14698 of
2006, which came to be disposed of directing
the Collector to take a decision. Pursuant
thereof, the impugned order came to be
passed on 27.04.2011, whereby, the second
respondent after recording the facts arrived at
a conclusion that the transfer of the land by
the erstwhile owner, declared surplus, vesting
in the State, is a void document and does not
confer any right and title upon the petitioner.
The erstwhile tenure holder (Khelai), had no
title or ownership to transfer the land, the
petitioner on the strength of alleged
possession on State land cannot agitate his
dispossession in view of Repeal Act. The
surplus land vested with the State upon
notification under Section 10(3) followed by
dispossession of the erstwhile owner of the
land (Khelai) under Section 10(5) way back
in 1981. The owner never protested or
agitated
his
dispossession
before
any
authority or Court. In the circumstances, the
subsequent buyer (Petitioner) cannot raise
challenge to the procedure of dispossession at
belated stage on the strength of a sale deed
being void ab-initio.

24. The writ petition being devoid
of merit, is accordingly, dismissed."

19. For the reasons aforestated and
also in view of the law laid down by
Hon'ble Supreme Court in the case of
Bhaskar
Jyoti
Sharma
(supra),
Kapilaben Ambalal Patel (supra) and a
coordinate Bench decision of this Court in
the case of Shiv Ram Singh (supra), we do
not find any merit in the writ petition. This
writ petition is also highly time barred and
no reason for the inordinate delay has been
given in the writ petition.

20. Consequently, the writ petition is
dismissed.
----------
(2023) 3 ILRA 423
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ C No. 53996 of 2012

Kailash Prasad Tewari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.V. Goswami, Sri Pradeep Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Abhinava Krisha Srivastava, Sri
Saroj
Yadav,
Smt.
Chandra
Kala
Chaturvedi, Sri Vivek Verma

A. Ceiling Law - UP Urban Land (Ceiling
and Regulation) Act 1976 - Section 6(1) -