Writ Court Can Go Into Question Of De Facto Possession Of Surplus Land, If Disputed Facts Can Be Discerned: Allahabad High Court

The Allahabad High Court has held that a writ Court can go into the question of de facto possession of surplus land if disputed facts can be discerned by the Court. It held that the State must establish that de facto possession of the land was taken prior to enactment of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 so as to prevent abatement of proceedings under Urban Land (Ceiling and Regulation) Act, 1976.

Following the judgment of the Supreme Court in M/s A.P. Electrical Equipment Corporation v. Tahsildar, the bench of Justice Shekhar B. Saraf and Justice Vipin Chandra Dixit held

“the writ Court can decide on the aspect of de facto possession of land if the disputed facts can be discerned and the correct position, ascertained by the writ Court.”

The Supreme Court in M/s A.P. Electrical Equipment Corporation has held that a writ Court can entertain a writ petition involving questions of facts and law and a jurisdiction of writ Court does not cease automatically on parties raising factual disputes. It was held that issues like determining possession of surplus land depend on factual matrix of each case and usually involve mixed questions of facts and law which empower the writ Courts to deal with such cases.

Holding that writ Court cannot not exercise its jurisdiction where not dealing with questions of facts can lead to serious miscarriage of justice, the Apex Court held that

“…… Mixed question of law and fact refers to a question which depends on both law and fact for its solution. In resolving a mixed question of law and fact, a reviewing court must adjudicate the facts of the case and decide relevant legal issues at the same time. Mixed questions of law and fact are defined “as questions in which the historical facts are admitted or established, the rule of law is resolved and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated”.

Factual Background

One Bholanath, father/father-in-law/grandfather of the petitioners, owned various agricultural lands in a village in District Allahabad. His name was also recorded in Khasra of 1422 Fasli year. Proceedings under Section 6 (1) of the Urban Land (Ceiling and Regulation) Act, 1976 were initiated against him based on his statement regarding vacant lands.

In 1983, an ex-parte order was passed against him declaring 67,138.12 square meter of land as surplus. Proceedings were initiated under Section 10 of the Ceiling Act and Bholanath was given 30 days' time to surrender the surplus land. Neither did Bholanath surrender the land nor did the authorities take forceful possession.

Till his death in 2005, Bholanath continued in possession of the land and after his death his heirs continued to possess the property including the surplus land. No compensation was paid by the State Government regarding the excess land.

By virtue of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, the proceedings stood abated. However, in 2015, the authorities threatened the petitioners, legal heirs of Bholanath, to vacate the surplus land within 30 days, else they would be forcefully disposed of the same. Consequently, the petitioners approached the High Court against the ex-parte order and seeking protection from dispossession.

High Court Verdict

Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (“Repeal Act”) provides that where possession under Section 10 of the Urban Land (Ceiling and Regulation) Act, 1976 was not taken prior to commencement of the Repeal Act even though the property vested with the State Government, such proceedings would stand abated by virtue of Section 4 of the Repeal Act. The ownership vested in State Government had to be restored to the land owner with the return of any compensation paid by the State towards it.

The Court relied on State of U.P. v. Hari Ram where the Apex Court had held that the burden to prove that the possession of the land has been transferred either voluntarily or forcefully to it to avoid the abatement under Section 4 of the Repeal Act.

The Court held that no document or evidence was brought on record to show that the possession had actually been vested in the State Government prior to the enactment of the Repeal Act.

“The factum of possession is primarily a question of fact and it is settled law that normally the disputed question of fact is not investigated or adjudicated upon or interfered with by the writ Court while exercising powers under Article 226 of the Constitution of India. But mere existence of a disputed question of fact also will not take away the jurisdiction of the writ Court in granting appropriate relief.”

The Court then observed that in State of U.P. v. Ehsan where the Supreme Court held that the factum of possession of surplus land should not be decided in the writ jurisdiction.

The bench headed by Justice Saraf held that the State had failed to establish as to when the possession of the surplus land was taken by it, if at all it was ever possessed. However, a Government order indicated that the land had been transferred by the State Government to Prayagraj Development Authority in 1996. The Court held that no notice of forceful dispossession or compensation was brought on record by the State. Thus, the Court held that despite laches the State could not establish de facto possession of the surplus land.

Relying on the decision of the Supreme Court in M/s A.P. Electrical Equipment Corporation, the Court held:

“As envisaged in the judgment of M/s A.P. Electrical Equipment Corporation (Supra), the possession envisaged under Section 3 of the Repeal Act, is de facto possession and not de jure possession. Furthermore, mere vesting of land declared surplus under the Act without resuming de facto possession is of no consequence and the land holder is entitled to the benefit of the Repeal Act.”

Accordingly, the writ petition was allowed.

Case Title: Ramji and Others v. State of U.P. and others [WRIT-C NO. 14904 OF 2016]

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