The bench of Justice Saral Srivastava and Justice Siddharth Nandan held,

“in case the original owner is found to have been dispossessed pursuant to a notice under Section 10(5) or by undertaking the proceedings under Section 10(6) of the Act of 1976, and against such dispossession, if no remedial proceedings have been undertaken by the original tenure holder, no writ of mandamus can be issued for correction of the revenue entries or for any consequential benefit.”

Petitioners claimed to be the legal heirs of one Jograj, who was recorded as bhumidhar of the land in village Salenagar, District Bareilly, and died in September 1981. It was pleaded that the land was declared surplus in ex parte proceedings against Jograj without notice. Petitioners claimed that they learnt of the surplus declaration only when they obtained a copy of the khatauni during a routine inspection of the revenue records, and approached the High Court in 2014.

Questioning the dakhalnama (possession memo) as irregular, petitioners argued that they continued to be in de facto possession and were entitled to the benefit of Sections 3 and 4 of the Repeal Act, 1999 and the Government Orders dated 09.02.2000 and 29.09.2015.

Perusing the original records, the Court observed that the notification under Section 10(3) was issued on 27.05.1989, notice under Section 10(5) was served on 29.08.1989 and possession was taken under a dakhalnama dated 10.01.1992, signed by the Tehsildar and independent witnesses. Since an application under Section 20 of the Act had been moved as early as 1982, the Court held that the original tenure holder and his heirs knew of the proceedings, yet no objection was raised against the dispossession or the revenue entries.

The Court observed that revenue records are not proof of title and only raise a rebuttable presumption of possession. It noted that the khatauni relied upon by petitioners related to a milzumla plot, and the names of the heirs may have continued over the portion left within the permissible limit. It held that there was no corroborative evidence of petitioners' possession over the surplus land on 18.03.1999, the date on which the Repeal Act came into force.

“without assailing the dispossession under the Act, 1976, the question of de facto possession of the petitioners cannot be looked into, in exercise of powers under Article 226 of the Constitution of India.”

Relying on State of Assam v. Bhaskar Jyoti Sarma, wherein the Supreme Court held that a grievance of non-compliance with Section 10(5) must be raised within a reasonable time of dispossession, failing which the right is deemed to be waived, the Court held that the original owner had waived his right as he raised no grievance during his lifetime.

On delay, the Court found that petitioners had not disclosed any date on which they came to know of the proceedings, and their explanation for approaching the Court 22 years after the taking of possession and 15 years after the Repeal Act was vague.

“on account of the un-explained delay, this Court has no reasons, at such a belated stage, to examine the irregularity in the issuance of notice under Section 10(5) or the preparation of the Dakhalnama; and is constrained to hold that the petitioners shall be deemed to have waived their right, on account of not having objected within a “reasonable time”.”

The Court further relied on the coordinate bench decision in Kumbh Karan v. State of U.P., where relief was declined on the ground of delay, observing that the petitioner there “had slept over his rights (No Pun Intended)”.

Accordingly, the writ petition was dismissed.

Case Title: Harpal and 4 others v. State of U.P. and 2 others