# Mohd. Baqar Agha v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 180
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-02
- **Case number:** Writ C No. 580 of 2014
- **Bench:** Pankaj Mithal, Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-baqar-agha-v-state-of-u-p-ors-45568
- **Pages:** 4

## Headnote

A. Land Law-Urban Land (Ceiling and
Regulation) Act, 1976 - Section 10(5)
and 10(6) - Surplus land - Effect of taking or
not taking the possession - After the land was
declared to be surplus, no proceedings for
taking its possession were drawn and that at
least no notice under Section 10 (5) of the Act
was served upon the petitioner to surrender or
deliver the possession of the surplus land - The
respondents have not taken possession of the
land so declared to be surplus - The
respondents have not brought any memo of
possession on record which may have been
executed under Section 10 (6) of the Act - It is
admitted legal position that once possession of
the land declared to be surplus under the Act
has not been taken and in the meantime the
Act has been repealed, the respondents cannot
initiate any proceedings under the said Act for
its
possession.
(Para
11,
15
and
17)
4 All. Mohd. Baqar Agha Vs. State of U.P. & Ors.
181
Writ Petition allowed. (E-1)

## Text

180 INDIAN LAW REPORTS ALLAHABAD SERIES
dependent on this contingency has also to
fall through.

To our mind such a contingency
as involved in the present case, which is
peculiar in its nature, arising out of the
pendency of the writ petition and the facts
aforesaid cannot be subject matter of an
election petition as urged by Sri Tripathi.
The bar of the constitutional provisions as
urged therefore is not at all attracted.

The decision of the apex court in
the case of K. Venkatachalam (supra), in
the aforesaid circumstances therefore
comes to the aid of this Court for exercise
of jurisdiction under Article 226 of the
Constitution of India and not to the
contrary as suggested by Sri Tripathi.

The question of a majority
having already voted against the petitioner
has to be considered in the background of
a
valid
meeting.
As
already
held
hereinabove since the meeting was itself
invalid, then the submission of Sri Tripathi
that a vast majority having voted against
the petitioner, can be of no consequence.
In our opinion, the reliefs prayed for by
the petitioner are very much entertainable
and the petition deserves to be allowed.

15. In view of the above, the writ
petition succeeds and is allowed. The
order/ notice of no confidence motion
scheduling the meeting under the order of
District Magistrate dated 21st December,
2018 is hereby quashed and so also any
consequential action if it is taken place
pursuant to such order/ notice stand
quashed.

16. We may clarify that since we
have held that notice itself was bad, the
provisions as contained under sub-section
12 of Section 15 shall not come in the way
of members if they so desire to move
another notice of no confidence motion.

17. With the aforesaid observations,
the writ petition stands allowed.
----------
(2020)02ILR A180

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2020

BEFORE

THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Writ C No. 580 of 2014

Mohd. Baqar Agha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manish Goyal, Sri Siddharth Singhal

Counsel for the Respondents:
C.S.C., Sri Brijendra Kumar Ojha

A. Land Law-Urban Land (Ceiling and
Regulation) Act, 1976 - Section 10(5)
and 10(6) - Surplus land - Effect of taking or
not taking the possession - After the land was
declared to be surplus, no proceedings for
taking its possession were drawn and that at
least no notice under Section 10 (5) of the Act
was served upon the petitioner to surrender or
deliver the possession of the surplus land - The
respondents have not taken possession of the
land so declared to be surplus - The
respondents have not brought any memo of
possession on record which may have been
executed under Section 10 (6) of the Act - It is
admitted legal position that once possession of
the land declared to be surplus under the Act
has not been taken and in the meantime the
Act has been repealed, the respondents cannot
initiate any proceedings under the said Act for
its
possession.
(Para
11,
15
and
17)
4 All. Mohd. Baqar Agha Vs. State of U.P. & Ors.
181
Writ Petition allowed. (E-1)

(Delivered by Hon'ble Pankaj Mithal, J. &
Hon'ble Vipin Chandra Dixit, J.)

1. Heard Sri Siddharth Singhal,
learned counsel for the petitioner, learned
Standing Counsel for the respondents and
Sri B.K. Ojha, learned counsel appearing
for
Allahabad
(Now
Prayagraj)
Development Authority.

2. The parties have exchanged pleadings
and agree for the final disposal of the writ
petition at the admission stage itself.

3. The petitioner has preferred this
petition for the quashing of the order dated
07.12.2013
passed
by
the
District
Magistrate, Allahabad (Now Prayagraj)
and the revenue entry in respect of plot
No. 1075 on the ground that as the urban
ceiling proceedings in respect of the said
land were never finalized, the name of the
State could not have been entered in the
revenue records and the petitioner cannot
be dispossessed from the said land after
the repeal of the Urban Land (Ceiling and
Regulation) Act, 1976.

4. There is no dispute to the fact that
about 1123 square meters of land of the
petitioner of Araji No. 1075 situate in
Bamrauli Uparhar, District Allahabad was
declared to be surplus vide order dated
08.03.1996 passed by the competent
authority under the aforesaid Act. The said
order became final and conclusive as it
was not challenged by the petitioner in any
higher forum.

5. The petitioner continued to be in
possession of the said land as the
proceedings for taking possession of it
were never completed.

6. In the meantime, the Urban Land
(Ceiling and Regulation) Repeal Act, 1999
was enforced w.e.f. 18.03.1999.

7. In the above circumstances, the
petitioner filed Writ Petition No. 49298 of
2006 alleging that as he continues to be in
actual possession of the land declared to
be surplus, its possession cannot be taken
over by the respondents. The said writ
petition was disposed off vide order dated
07.09.2006 with the observation that as the
Act
has
been
repealed,
no
further
proceedings can be taken if the petitioner
continues to be in actual possession of the
excess land or the land which has been
declared to be surplus. At the same time,
District Magistrate was directed to decide
the representation of the petitioner by a
speaking order and till its decision parties
were directed to maintain status-quo over
the said land.

8. It is in pursuance of the above
order that the District Magistrate has
passed order dated 07.12.2013 refusing to
delete the name of the State from the
revenue records and to restore that of the
petitioner alleging that the aforesaid land
was declared to be surplus which order has
acquired finality.

9. The District Magistrate in passing
the above order has not mentioned or
referred to the fact of possession of the
said land. The order is completely silent if
pursuant to the declaration of the land to
be surplus the possession was taken over
by the State or not.

10. In the writ petition, petitioner has
categorically stated in paragraph 6 that he
is still in possession, his constructions
exist over the said land and he is using
electricity and telephone in the said
182 INDIAN LAW REPORTS ALLAHABAD SERIES
premises.
The
bills
thereof
clearly
establish that he is in possession.

11. In paragraph 30 of the writ
petition, it has been stated that after the
land was declared to be surplus, no
proceedings for taking its possession were
drawn and that at least no notice under
Section 10 (5) of the Act was served upon
him to surrender or deliver the possession
of the surplus land. The respondents have
not taken possession of the land so
declared to be surplus.

12. In the counter affidavit filed by the
Allahabad
Development
Authority,
no
possession memo has been brought on record.
It has not been stated that the possession of
the land was surrendered by the petitioner
voluntarily or that it was taken over under
Section 10 (6) of the Act.

13. In counter affidavit of the State,
in paragraph 3, it has been alleged that
pursuant to the declaration of the land to
be surplus, notices under Section 10 (1)
and 10 (3) of the Act were published in the
Gazettes but there is no averment that any
proceedings under Section 10 (5) or 10 (6)
of the Act were initiated meaning thereby
that the respondents never actually took
possession of the land in question.

14. In reply to the paragraph 30 of
the writ petition, the only thing stated is
in paragraph 9 of the counter affidavit
and that is to the effect that as per the
direction of this Court, the representation
of the petitioner has been rightly decided
by the District Magistrate and since it
was found to be baseless, it has been
rejected. Again, the averments made
regarding possession of the petitioner
over the land in dispute have been left
uncontroverted.

15. The respondents have not
brought any memo of possession on record
which may have been executed under
Section 10 (6) of the Act.

16. In view of the above, as pursuant
to the declaration of the land to be surplus,
the possession of it was never taken over
by the State, the said land has not come
under the ownership of the State so as to
permit the respondents to record it in the
name of the State.

17. It is admitted legal position that
once possession of the land declared to be
surplus under the Act has not been taken
and in the meantime the Act has been
repealed, the respondents cannot initiate
any proceedings under the said Act for its
possession.

18. The petitioner despite land
being declared to be surplus, in the
absence of the possession continues to
be in its possession and to be the
owner.

19. Accordingly, he is entitle for
getting his name restored in the revenue
records if on the basis of declaration of the
land to be surplus, his name has been
deleted.

20. In view of the aforesaid facts and
circumstances, the impugned order dated
07.12.2013
passed
by
the
District
Magistrate, Allahabad is hereby quashed
and it is directed that the name of the
petitioner be restored in the revenue
records.

21.

The
writ
petition
is,
accordingly, allowed with no order as
to costs.
----------
2 All. Ram Sukh & Anr. Vs. State of U.P. & Ors.
183
(2020)02ILR A183

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2020

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 619 of 2020

Ram Sukh & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rakesh Prasad

Counsel for the Respondents:
C.S.C., Sri Diwakar Singh

A. Civil Law-Uttar Pradesh Revenue Code,
2006 - Section 24(3) - Period of three
months to dispose of matter - Mandatory or
Directory - Legislature has set pragmatic
standards which are achievable and not
created idealistic goals which are beyond reach
- The realities of administration of justice in
revenue courts have been balanced with the
ideals of speedy justice - Good authority thus
holds
that
statutes
fixing
timelines
to
accomplish an action are directory in nature -
Mere failure to decide the case within three
months does not violate the statutory mandate.
(Para 19, 29 and 32)

B. Interpretation of Statute - Word 'shall' -
Meaning and Scope - The words of a statute
are the best guide to legislative intent - The
settled canons of interpretation of statutes are
the best tools to ascertain the scope of the
statutory duties - Consequences of using the
word 'shall' can vary and are not uniform - The
mandatory effect of the word 'shall' can be
diluted depending upon the context in which
the word 'shall' is employed and the statutory
scheme in which it is placed. In the context the
word 'shall' is also qualified by the words 'as far
as possible' - The latter words limit the
mandatory effect of the word 'shall' - The word
'shall' is indicative of the mandatory nature of
the provision, but it is not conclusive. (Para 16,
20 and 22)

Writ Petition disposed of. (E-1)

List of cases cited :-
1. Haryana Vs. Raghubir Dayal (1995) 1 SCC 133

2. N.K. Chauhan Vs. State of Gujarat and
others (1977) 1 SCC 308

3. P.T. Rajan Vs. T.P.M. Sahir and others
(2003) 8 SCC 498

4. Sharif-Ud-Din Vs. Abdul Gani Lone (1980) 1
SCC 403

5. Vikas Trivedi Vs. State of U.P. and others,
reported at (2013) 2 UPLBEC 1193

6. Karnal Improvement Trust, Karnal Vs. Smt.
Parkash Wanti (Dead) and another (1995) 5 SCC 159

7. State of Haryana Vs. P.C. Wadhwa, IPS, Inspector
General of Police and another (1987) 2 SCC 602

8. Regional Provident Fund Commissioner Vs.
K.T. Rolling Mills Pvt. Ltd. (1995) 1 SCC 181

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The petitioner instituted a
proceeding under Section 24 of The Uttar
Pradesh Revenue Code, 2006 before the
Sub-Divisional Officer, Phulpur, District
Allahabad in the year 2009 which was
registered as Case no. 269 of 2009-10
(Ram Sukh Vs Gram Sabha and others).
The dispute pertains to demarcation of the
boundaries of the disputed plots.

2. The petitioner is aggrieved by the
failure of the statutory authority to decide
the aforesaid proceeding, more than 10
years after institution of the case.

3. The only prayer made by Sri
Rakesh Prasad, learned counsel for the