The Allahabad High Court recently clarified that a writ court has the authority to examine whether surplus land is under de facto possession—meaning actual physical control—even when there are factual disputes, provided the facts can be reasonably understood from the records.
This significant ruling came from a bench comprising Justice Shekhar B. Saraf and Justice Vipin Chandra Dixit, who leaned on the Supreme Court's decision in M/s A.P. Electrical Equipment Corporation v. Tahsildar. The apex court had earlier held that writ courts can handle cases involving both legal and factual questions.
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"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 bench observed.
The Supreme Court had also clarified that raising factual disputes doesn’t automatically take away a writ court’s jurisdiction. In many cases, including surplus land disputes, the issues involve mixed questions of law and fact, which fall well within the court’s power to decide.
"Mixed question of law and fact refers to a question which depends on both law and fact for its solution… whether the rule of law as applied to the established facts is or is not violated.”
Background of the Case
The matter revolved around land once owned by Bholanath, who held various agricultural plots in a village in District Allahabad. His name appeared in official land records (Khasra of 1422 Fasli). Based on his own statement under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976, authorities began proceedings against him for holding excess land.
In 1983, authorities passed an ex-parte order declaring 67,138.12 square meters of his land as surplus. Though he was given 30 days to surrender the excess land, he neither surrendered nor was forcefully removed. Until his death in 2005, Bholanath remained in possession of the land, and his heirs continued to hold it after that.
Despite the surplus declaration, the State Government never paid any compensation nor took physical possession. With the enactment of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, the original proceedings were deemed abated.
However, in 2015, local authorities suddenly directed Bholanath’s heirs to vacate the land within 30 days, failing which they would be forcibly removed. This triggered a writ petition in the High Court challenging the earlier ex-parte order and seeking legal protection.
Under Section 3 of the Repeal Act, 1999, if possession under Section 10 of the original Act was not taken before the Repeal Act came into force, the proceedings stand abated. The State must then return possession and compensation (if any) to the original landowner.
The High Court referred to the Supreme Court ruling in State of U.P. v. Hari Ram, where it was made clear that:
"The burden lies on the State to prove that possession of the land was taken, either voluntarily or forcefully, before the Repeal Act came into effect."
In this case, the Court noted that no evidence was presented to prove that the State took de facto possession of the land.
“The factum of possession is primarily a question of fact, and though writ Courts generally avoid interfering in such matters, that alone does not restrict their jurisdiction if it leads to injustice,” the Court observed.
The Court also examined the precedent set in State of U.P. v. Ehsan, where the Supreme Court had discouraged deciding possession disputes under writ jurisdiction. However, the present bench clarified that each case needs to be evaluated on its facts.
The Court pointed out that the State could not show any notice, compensation proof, or documents indicating forceful possession. Even a government order from 1996 transferring the land to the Prayagraj Development Authority failed to establish physical possession.
“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,” the Court held.
The Court concluded that just because land was declared surplus and vested with the State on paper, it does not mean the land was physically taken. If de facto possession was not taken, the landowner or heirs are entitled to benefit under 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]
