# S.K. Associates v. State Of U.P.& Ors

- **Citation:** (2023) 4 ILRA 917
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-25
- **Bench:** Surya Prakash Kesarwani, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-k-associates-v-state-of-u-p-ors-50048
- **Pages:** 10

## Headnote

A. Constitution of India,1950 - Article 226
- Writ - Scope - Discretionary power, how
can be exercised - Petitioner not coming
with clean hand, whether can claim equity
- Held, power under Article 226 is a
discretionary power. A writ can be issued
only in case of a grave miscarriage of
justice or where there has been a flagrant
violation
of
law.
The
power
being
discretionary, the court has to balance
competing interests, keeping in mind that
the interests of justice and public interest
coalesce generally - A court of equity,
when exercising its equitable jurisdiction
must act so as to prevent perpetration of a
legal fraud and promote good faith and
equity - A petitioner whose claim is not
founded on valid grounds, is not entitled
to claim equity. A person who claims
equity must come before the court with
clean hands as equities have to be
properly worked out between parties to
ensure that no one is allowed to have
their pound of flesh vis-a-vis the others
unjustly. (Para 15)
B. Ceiling Law - Urban Land (Ceiling and
Regulation) Act, 1976 - Ss. 8, 10(1),
10(3), 10(4) and 10(5) - Surplus land -
Purchase of the surplus land vide saledeed, how much accrue the right - Held,
the disputed land vested in the St. and the
alleged sale deed is totally null and void in
view of Section 10(4) of the Act, 1976 -
The petitioner being an alleged purchaser,
has even no locus standi. (Para 7 and 16)
B. Ceiling Law - Urban Land (Ceiling and
Regulation) Repeal Act, 1999 - S. 3 -
Abatement of proceeding - Possession -
Relevancy - Held, 'taking over possession'
forms the lifeline of Section 3 of the
Repeal Act and a person seeking the
benefit of the Repeal Act for restoration of
the land should plead and prove that
possession was not taken over. [Para 17
(e)]
Writ petition dismissed. (E-1)
List of Cases cited:

## Text

4 All. S.K. Associates Vs. State of U.P. & Ors.
917

26. It is informed at the bar that the
amount awarded by the Tribunal vide order
dated 18.12.2018 has not been withdrawn
by the respondents, thus, it is directed that
the amount deposited, if any, by the
petitioner shall continue to remain deposit
subject to the fresh award that may be
passed by the Tribunal, as directed above.

27 . The writ petition stands disposed
off with the said observations.
----------
(2023) 4 ILRA 917
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.01.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ-C No .19391 of 2022

S.K. Associates ...Petitioner
Versus
State Of U.P.& Ors. ...Respondents

Counsel for the Petitioner:
Sri Rahul Agarwal, Sri Shashinandan (Sr.
Adv.)

Counsel for the Respondents:
C.S.C., Sri Dharmendra Singh Chauhan, Sri
Ashok Mehta (Sr. Adv.)

A. Constitution of India,1950 - Article 226
- Writ - Scope - Discretionary power, how
can be exercised - Petitioner not coming
with clean hand, whether can claim equity
- Held, power under Article 226 is a
discretionary power. A writ can be issued
only in case of a grave miscarriage of
justice or where there has been a flagrant
violation
of
law.
The
power
being
discretionary, the court has to balance
competing interests, keeping in mind that
the interests of justice and public interest
coalesce generally - A court of equity,
when exercising its equitable jurisdiction
must act so as to prevent perpetration of a
legal fraud and promote good faith and
equity - A petitioner whose claim is not
founded on valid grounds, is not entitled
to claim equity. A person who claims
equity must come before the court with
clean hands as equities have to be
properly worked out between parties to
ensure that no one is allowed to have
their pound of flesh vis-a-vis the others
unjustly. (Para 15)
B. Ceiling Law - Urban Land (Ceiling and
Regulation) Act, 1976 - Ss. 8, 10(1),
10(3), 10(4) and 10(5) - Surplus land -
Purchase of the surplus land vide saledeed, how much accrue the right - Held,
the disputed land vested in the St. and the
alleged sale deed is totally null and void in
view of Section 10(4) of the Act, 1976 -
The petitioner being an alleged purchaser,
has even no locus standi. (Para 7 and 16)
B. Ceiling Law - Urban Land (Ceiling and
Regulation) Repeal Act, 1999 - S. 3 -
Abatement of proceeding - Possession -
Relevancy - Held, 'taking over possession'
forms the lifeline of Section 3 of the
Repeal Act and a person seeking the
benefit of the Repeal Act for restoration of
the land should plead and prove that
possession was not taken over. [Para 17
(e)]
Writ petition dismissed. (E-1)
List of Cases cited:
1. St. of T. N. & ors. Vs M.S. Viswanathan &
ors.; (2021) 10 SCC 614
2. Sulochana Chandrakant Galande Vs Pune
Municipal Transport & ors.; (2010) 8 SCC 467
3. St. of U.P. & ors. Vs Adarsh Seva Sahkari
Samiti Ltd.; (2016) 12 SCC 493
4. St. of U. P. & ors. Vs Surendra Pratap & ors.;
(2016) 12 SCC 497
5. St. of Assam Vs Bhaskar Jyoti Sharma & ors.;
(2015) 5 SCC 321
918 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Shiv Ram Singh Vs St. of U.P. & ors.; 2015
(7) ADJ 630
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Shashinandan, learned
Senior Advocate assisted by Sri Rahul
Agarwal, learned counsel for the petitioner,
Sri Ashish Kumar Nagvanshi, learned
Standing Counsel for the State-respondents
and Ashok Mehta, learned Senior Advocate
assisted
by
Sri
Dharmendra
Singh
Chauhan,
learned
counsel
for
the
respondent No.4.

2. This writ petition has been filed
praying for the following relief:

"(A) Issue a writ, order or
direction in the nature of certiorarı
quashing the entire proceedings under the
Urban Land (Ceiling and Regulation), Act
drawn against the Tara Chand in Case
No.1820/122/82 State of UP. Versus Tara
Chand in respect of land of Gata No.825
area 2363.47 sq.m. situated in village
Bihar Man Nagla, District Bareilly as
having abated in accordance with the
provisions of the The Urban Land (Ceiling
and Regulation) Repeal Act, 1999.

(A) Issue a writ, order or
direction in the nature of mandamus
directing commanding the respondents not
to dispossess the petitioner from land of
Gata No.825 area 2363.47 sq.m. situated in
village Bihar Man Nagla, District Bareilly.

(C) Issue a writ, order or direction
in the nature of mandamus directing and
commanding the respondents to correct the
revenue records by recording the name of
petitioner on land of Gata No.825 area
2363.47 sq.m. situated in village Bihar Man
Nagla, District Bareilly."

3. Briefly stated facts of the present
case are that Thakur Das, Tara Chand and
Tula Ram were the recorded tenure-holders
of certain khasra plots including khasra plot
No.825 as per copy of khatauni available in
the original record of Ceiling Case
No.1339/61/82 produced before the court
by the respondents. A notice dated
01.01.1983 under Section 8 of the Urban
Land (Ceiling and Regulation) Act, 1976
(hereinafter referred to as ''the Act, 1976')
was issued to the aforesaid Thakur Das,
who filed his objection on 02.02.1983
being Case No.1339/61/82 (State vs.
Thakur Das). After considering objection
an order under Section 8(4) of the Act,
1976 was passed on 27.03.1984 declaring
certain land as surplus which included
2363.47 square meters surplus land of
khasra plot No.825. Thereafter, a notice
under Section 9 of the Act, 1976 was sent
to the aforesaid Thakur Das through
registered post which was served upon him.
Notification under Section 10(1) of the Act,
1976 was issued on 28.08.1985, which was
published in the Gazette on 28.02.1986.
After publication of the notice under
Section 10(1) of the Act, 1976, a
notification dated 11.06.1986 under Section
10(3) of the Act, 1976 was sent which was
published on 13.09.1986. Notice under
Section 10(5) of the Act, 1976 was sent to
the recorded tenure-holder on 28.11.1989.
According
to
the
respondents,
the
possession was taken on 16.11.1990. Since
none had filed any objection against the
possession, therefore, the name of the State
Government was recorded in the khataunis
over the surplus land free from all
encumbrances.
On
16.11.1990,
the
possession
was
transferred
to
the
respondent
No.4,
i.e.
the
Bareilly
Development Authority. It is also relevant
to mention that on perusal of the original
records of Case No.1820/122/82 (State vs.
4 All. S.K. Associates Vs. State of U.P. & Ors.
919
deceased Tara Chand) (Page-16/1), it
appears from the noting/ reports dated
25.04.1995 that Thakur Das had also filed
some appeal which was pending. However,
further particulars of appeal or decision are
not available in the records as produced by
the State-respondents. This is how there
was some link between the ceiling case
against the aforesaid Thakur Das and cotenure-holder Tara Chand.

4. That similarly against the cotenure-holder Tara Chand, a Ceiling
Case No.1820/122/82 (State vs. Tara
Chand) was registered. A notice under
Section 8 of the Act, 1976 was issued to the
aforesaid Tara Chand on 06.02.1984, who
had not filed his objection and as such an
order dated 04.04.1985 under Section 8(4)
of the Act, 1976 declaring 6932.23 square
meters as surplus land, was passed which
included portion of khasra plot No.825 in
question. Notification under Section 10(1)
of the Act was issued on 25.10.1989, which
was published on 17.03.1990. Notification
under Section 10(3) of the Act was issued
on 27.06.1990, which was published on
17.11.1990. Notice under Section 10(5) of
the Act, 1976 was issued on 25.10.1991 to
the aforesaid Tara Chand and thereafter on
19.06.1993 to the heirs of Tara Chand
which was served upon the wife of Late
Tara Chand, namely Smt. Bilaso, which
fact is evident from the acknowledgement
of Bilaso Devi on the back side of the
notice available in the original records of of
Case No.1820/122/82 (State vs. Tara
Chand) at Page 14/6. One of the heirs of
Tara Chand, namely Ram Das filed an
objection dated 08.10.1993 stating that his
brother had received the notice with whom
he had not good terms and, therefore, he
was not having knowledge of orders dated
04.04.1985 and 28.01.1989. By order dated
26.03.1996, the objection of the aforesaid
Ram Das and Amar Singh, son of late Tara
Chand and Smt. Bilaso, wife of Tara Chand
were rejected by the Competent Authority,
Urban Land Ceiling, Bareilly. The name of
the State was mutated in the revenue
records on 02.02.1994 in the khatauni for
the Fasli 1400-1405, in respect of certain
plots including plot No.825M, measuring
2363.47 square meters. It further appears
that some appeal filed by heirs of Tara
Chand against the order under Section
10(8) of the Act, 1976 was dismissed by
the court of District Judge, Bareilly on
13.07.1998.

5. In paragraph-28 of the writ petition,
the petitioner has stated that legal heirs of
Tara Chand being Jagdish Prasad, Ram Das
and Amar Singh sons of Tara Chand as
well as Bhagwan Das and Sukhlal, sons of
Tula Ram sold the total land of khasra plot
No.825 measuring 3 bighas and 1 biswas to
the petitioner by a registered sale deed
dated 20.03.2003, through their power of
attorney holders. From the alleged sale
deed dated 20.03.2003, it appears that
power of attorney given by Jagdish to one
Jasveer
Singh,
was
registered
on
17.07.2002. Power of attorney given by
Bhagwan Das and Sukhlal sons of Tula
Ram and Sundar Devi wife of Tula Ram,
was registered on 23.07.2002 in favour of
the aforesaid Jasveer Singh. Another power
of attorney was given by Ram Das and
Amar Singh sons of Tara Chand to one
Satvir Singh, which was registered on
02.09.2002.

6. In paragraph-26 of the counter
affidavit dated 16.01.2023, the respondent
Nos.1, 2 and 3 have stated that "on
05.09.2002 Jagdish Prasad has cancelled
the power of attorney dated 17.07.2002
executed in favour of Jasveer Singh." In
paragraph-26 of the rejoinder affidavit, the
920 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners have admitted this fact. Thus,
the sale deed dated 20.03.2003 executed by
Jasveer Singh, power of attorney holder
was without authority as it was executed
subsequent to cancellation of power of
attorney. However, on the basis of the
aforesaid sale deed, the petitioner got his
name mutated on 22.05.2003 against which
a recall application was filed by Jagdish
Prasad
on
11.07.2007
being
Case
No.729/732/7 (S.K. Associates vs. Jasveer
Singh), which was allowed and the
mutation order dated 22.05.2003 was
cancelled. It remains undisputed that over
the surplus land of khasra plot No.825, the
name of the State is continuing in the
khataunis from about three decades. As per
annexure CA-3 to the short counter
affidavit, the possession over the surplus
land of khasra plot No.825, measuring
7714.06 square meters was taken under
Section 10(6) of the Act, 1976.

7. Thus, from the records it is evident
that the petitioner claims to be a
subsequent purchaser of the surplus
declared land under the Act, 1976, by
way of a sale deed dated 20.03.2003 which
was executed by the alleged power of
attorney holder in favour of the petitioner
after the power of attorney was cancelled
on 05.09.2002.

8. From the facts as aforenoted, it is
evident that the land in question vested in
the State and after taking possession
thereof, it was transferred to the Bareilly
Development
Authority.
As
per
photographs filed along with the short
counter affidavit on behalf of respondent
No.4 (Bareilly Development Authority,
Bareilly) and also as per averments made in
paragraph-15 of the said short counter
affidavit, the land in question is in actual
physical possession of the Bareilly
Development Authority. The original
tenure-holders or their successors have
neither objected at any point of time during
last about three decades nor they have filed
the present writ petition. The present writ
petition has been filed by a so-called
purchaser of the disputed land, who
allegedly purchased it by a sale deed dated
20.03.2003 through an alleged power of
attorney holder whose power of attorney
was cancelled on 05.09.2002. The aforesaid
alleged sale deed has been got executed
after vesting of the disputed land in the
State about two decades ago and the name of
the State stood recorded in the revenue
records. There is nothing on record to show
that the petitioners have any authority of law
to possess the disputed land. No evidence has
been filed by the petitioners to establish that
they are in possession of the disputed land.
On the contrary, the short counter affidavit
filed by the respondent No.4 and photograph
annexed
therewith
indicates
physical
possession of the respondent No.4 over the
land in question and the disputed land is
enclosed by a boundary-wall constructed by
the respondent No.4.

9. Considering the question of proving
possession for the purposes of Section 3 of
the Repeal Act, 1999, in a recent judgment in
the case of State of Tamil Nadu and others
vs. M.S. Viswanathan and others, (2021)
10 SCC 614 (Paras-16 and 24); Hon'ble
Supreme Court has held as under:

"16. In essence, "taking over
possession" forms the lifeline of Section 3 of
the Repeal Act and a person seeking the
benefit of the Repeal Act for restoration of
the land should plead and prove that
possession was not taken over.

24. Unfortunately, the High Court
did not even look into the letter dated 11-
4 All. S.K. Associates Vs. State of U.P. & Ors.
921
11-1980 nor did the High Court examine
the records of the Department. Both the
Single Judge as well as the Division Bench
proceeded on the premise that the land was
lying vacant with a compound wall and that
therefore, the claim of the landowner to be
in possession must be correct. There can
hardly be any such presumption. The
existence of the compound wall enclosing
even the land that had already been sold by
the land owner to the Trust, is admitted by
the land owner herself in her letter dated
11-11-1980. Therefore, the High Court
committed a grave error in granting the
benefit of Section 3(2) of the Repeal Act to
the respondents herein."

10. In the case of Sulochana
Chandrakant
Galande
vs.
Pune
Municipal Transport and others, (2010)
8 SCC 467 (para-36), Hon'ble Supreme
Court held that in case where the
possession has been taken, repeal of the
Act, 1976 would not confer any benefit on
the owner of the land. In the present set of
facts, it is undisputed that the land in
question was allegedly purchased by the
petitioners by way of alleged sale deed
dated 20.03.2003, i.e. much subsequent to
conclusion of proceedings under the Act,
1976 including the proceeding under
Section 10(5). Thus, the petitioner is a
third party purchaser who has no locus
standi to claim any benefit by alleging that
possession was not taken.

11. Since as per own case set up by
the petitioner, he has allegedly purchased
the land in question after statutorily vesting
of the land in the State Government under
Section 10 of the Act, 1976, therefore, a
statutory bar on transfer stood created by
sub-Section (4) of Section 10. Hence, in
any case, the alleged transfer of property
made in contravention of the statutory
mandate, is null and void. The correctness
of taking over possession of the surplus
declared vacant land by the competent
authority or his authorised officer, cannot
be examined in writ jurisdiction and no
relief can be granted by the High Court at
the instance of the petitioner herein, who
allegedly has purchased the land after
vesting of the land with the State
Government. Thus, the petitioner has even
no
locus
standi
either
to
challenge
possession or to file the present writ
petition. The view being taken by us is
supported by the law laid down by Hon'ble
Supreme Court in the case of State of U.P.
and others vs. Adarsh Seva Sahkari
Samiti Limited, (2016) 12 SCC 493
(paras-4 to 8), as under:

"4. We have examined this aspect.
Having regard to the undisputed fact that
the respondent has purchased the property
from the declarant which is vested with the
State Government under Section 10(5) of
the Act in terms of of Section 10(3)
Notification, therefore, the transfer of
property in favour of the respondent, who
is claiming its interest in the said property
is void ab initio in law. On this ground
alone, the order passed by the High cannot
be allowed to sustain.

5. It is also brought to our notice
by the learned senior counsel Mr. Misra
that after the proceedings Under Sections
10(3) and 10(5), notice and the alleged
taking over possession of the land in
question, the subsequent event has taken
place, namely, the said property has been
transferred to the Lucknow Development
Authority by the State Government and the
development authority has laid a park for
public use. On this, learned senior counsel
for the respondent submits that the said
event has taken place during the pendency
922 INDIAN LAW REPORTS ALLAHABAD SERIES
of the proceedings before the High Court.
Though it may be the fact, subsequently,
after the transfer of the property in favour
of the development authority, the authority
has developed a park is an undisputed fact.
This is also a very relevant aspect of the
matter for this Court to annul the impugned
judgment/order passed by the High Court.

6. In our opinion, the respondent
herein has no locus standi to challenge
the inaction on the part of the appellants
viz. not taking possession legally strictly
complying with the statutory provisions
under Section 10(5) of the Act and taking
over possession as provided under Section
10(6) of the Act. At this juncture, this
aspect need not be examined by this Court
at the instance of the respondent.

7. For the reasons stated supra,
the impugned order passed by the High
Court to the extent it granted relief to the
respondent herein is liable to be set aside
and is hereby set aside accordingly. The
appeals are allowed accordingly. There
shall be no order as to costs.

8. Having allowed the appeals,
considering the respondent's submission
that the possession of the land was taken
over under Section 10(6) of the Act, it is
open for the respondent to prefer a claim
under
Section
11
of
the
Act
for
compensation by filing an appropriate
application under the provisions of the Act
before the appropriate authority, which
claim shall be examined independently by
the
competent
authority
and
pass
appropriate orders in accordance with law
expeditiously but not later than six months
from
the
date
of
receipt
of
such
application." (Emphasis supplied by us)

12. The aforesaid two judges bench
judgment of Hon'ble Supreme Court was
affirmed by a three judges bench judgment
of Hon'ble Supreme Court in the case of
State of Uttar Pradesh and others vs.
Surendra Pratap and others, (2016) 12 SCC
497 (paras-8 and 9), as under:

"8. Moreover, in State of U.P.
and others vs. Adarsh Seva Sahkari Samiti
Limited, (2016) 12 SCC 493, this Court has
observed that after the vesting of the
surplus land with the State Government
u/s 10(5) of the Act, if any transfer of the
property in question is effected, such
transfer would be void ab initio and the
transferee would not be entitled to
challenge the alleged inaction on part of
the State Government or the Competent
Authority in not taking possession in
compliance with the provisions u/s 10(5)
of the Act.

9. In the aforesaid circumstances,
the view taken by the High Court in the
instant case is completely unsustainable.
This appeal is, therefore, allowed and the
Writ Petition preferred by the respondent
Nos.1 and 2 herein stands dismissed with
costs."

(Emphasis supplied by us)

13. In the case of State of Assam vs.
Bhaskar Jyoti Sharma and others, (2015)
5 SCC 321 (Paras-16, 17 and 19), Hon'ble
Supreme Court held 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
4 All. S.K. Associates Vs. State of U.P. & Ors.
923
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.

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
924 INDIAN LAW REPORTS ALLAHABAD SERIES
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)

14. The aforesaid judgment of
Hon'ble Supreme Court in the case of
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 others, 2015 (7)
ADJ 630 and the writ petition was
dismissed on the ground of laches,
observing as under:

"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)

15. Apart from above, the power
under Article 226 is a discretionary power.
A writ can be issued only in case of a grave
miscarriage of justice or where there has
been a flagrant violation of law. The power
being discretionary, the court has to
balance competing interests, keeping in
mind that the interests of justice and public
interest coalesce generally. A court of
equity, when exercising its equitable
jurisdiction must act so as to prevent
perpetration of a legal fraud and promote
good faith and equity. A petitioner whose
claim is not founded on valid grounds, is
not entitled to claim equity. A person who
claims equity must come before the court
with clean hands as equities have to be
properly worked out between parties to
ensure that no one is allowed to have their
pound of flesh vis-a-vis the others unjustly.

16. In the present set of facts, we have
already noted that the disputed land vested
in the State and the alleged sale deed is
totally null and void in view of Section
10(4) of the Act, 1976, apart from the fact
that the power of attorney was withdrawn
much before the execution of the alleged
4 All. S.K. Associates Vs. State of U.P. & Ors.
925
sale deed. The petitioner being an alleged
purchaser, has even no locus standi. Thus,
on the present set of facts, we also find that
it is not a fit case to exercise equitable
discretionary jurisdiction.

17. Thus, we reach to the following
conclusions:

(a) The petitioner claims to be a
purchaser of the surplus declared land
under the Act, 1976, by way of a sale deed
dated 20.03.2003 which was executed by
the alleged power of attorney holder in
favour of the petitioner after the power of
attorney was cancelled on 05.09.2002.

(b) The land in question vested in
the State. The State took its possession and
transferred it to the Bareilly Development
Authority. As per photographs filed along
with the short counter affidavit on behalf of
respondent No.4 (Bareilly Development
Authority, Bareilly) and also as per
averments made in paragraph-15 of the said
short counter affidavit, the land in
question is in actual physical possession
of the Bareilly Development Authority.

(c) The original tenure-holders
or their successors have neither objected
at any point of time during last about
three decades to the vesting of the land in
question nor striking off the names of
original tenure holders and mutation of
name of the State/ respondent No.4 in
revenue records, i.e. Khatauni etc., nor
they have filed the present writ petition.
The present writ petition has been filed
by a so-called purchaser of the disputed
land, i.e. the petitioner, who allegedly
purchased it by a sale deed dated
20.03.2003 through an alleged power of
attorney holder whose power of attorney
was cancelled on 05.09.2002, i.e. much
prior to the execution of the aforesaid
sale deed.

(d) The aforesaid alleged sale
deed has been got executed after vesting
of the disputed land in the State about
two decades ago and the name of the
State stood recorded in the revenue
records. There is nothing on record to
show that the petitioners have any
authority of law to possess the disputed
land. No evidence has been filed by the
petitioners to establish that they are in
possession of the disputed land.

(e) In essence, "taking over
possession" forms the lifeline of Section
3 of the Repeal Act and a person seeking
the benefit of the Repeal Act for
restoration of the land should plead and
prove that possession was not taken over.

(f) Where the possession has been
taken, repeal of the Act, 1976 would not
confer any benefit on the owner of the land.
In the present set of facts, it is undisputed
that the land in question was allegedly
purchased by the petitioners by way of
alleged sale deed dated 20.03.2003, i.e.
much
subsequent
to
conclusion
of
proceedings under the Act, 1976 including
the proceeding under Section 10(5). Thus,
the petitioner is a third party purchaser
who has no locus standi to claim any
benefit by alleging that possession was not
taken.

(g) After statutorily vesting of the
land in the State Government under Section
10 of the Act, 1976, a statutory bar on
transfer stood created by sub-Section (4) of
Section 10. Therefore, in any case, the
alleged transfer of property made in
contravention of the statutory mandate, is
null and void. Thus, claim of interest by the
926 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner in the disputed land is void ab
initio in law.

(h) Even 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). 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 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.

(i) 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. However in its
discretion, this court may decide the
question
of
possession
if
there
are
sufficient evidences to establish that
possession was not taken by the State
Government and the land owner is
continuing in possession.

(j) In view of the facts briefly
noted in paras 3 to 6 above, the writ
petition is also not even entertainable on
the ground of laches.

(k) In the present set of facts, we
have already noted that the disputed land
vested in the State and the alleged sale deed
is totally null and void in view of Section
10(4) of the Act, 1976, apart from the fact
that the power of attorney was withdrawn
much before the execution of the alleged
sale deed. The petitioner being an alleged
purchaser, has even no locus standi. Thus,
on the present set of facts, we also find that
it is not a fit case to exercise equitable
discretionary jurisdiction.

18. For all the reasons aforestated and
also in view of the law laid down by Hon'ble
Supreme Court in M.S. Viswanathan and
others (supra), Sulochana Chandrakant
Galande (supra), Adarsh Seva Sahkari
Samiti Limited (supra), Surendra Pratap
and others (supra), Bhaskar Jyoti Sharma
and others (supra) and also the law laid
down by a coordinate bench of this court in
the case of Shiv Ram Singh (supra), we do
not find any merit in this writ petition, apart
from the fact that the petitioner has no locus
standi and the writ petition is also hit by
laches. Consequently, the writ petition is
dismissed.
----------
(2023) 4 ILRA 926
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-C No .26259 of 2014

Suresh Chandra Srivastava & Ors.
 ...Petitioners
Versus
Sub Divisional Officer, Tehsil Sadar ,
Jhansi & Ors. ...Respondents

Counsel for the Petitioners:
Sri R.C. Singh, Sri K.P. Tiwari, Sri Tarun
Verma, Sri Vinod Kumar, Sri Bajinder Singh,
Sri Narayan Dutt Shukla, Sri Anand Varma

Counsel for the Respondents: