No Transfer Of Immovable Property Via Affidavit: Allahabad HC Imposes ₹10 Lakh Cost On Catholic Diocese, State For Deprivation Of Land For 32 Yrs

Recently, the Allahabad High Court imposed a cost of Rs. 10 lakhs on the Catholic Diocese of Gorakhpur and the UP government, for illegally depriving a man of his property for more than 32 years.

The Court held that the transfer of immovable property cannot be done by way of an application or an affidavit under the Urban Land (Ceiling and Regulation) Act, 1976 otherwise it will create chaos regarding rights in properties as guaranteed under various laws.

“….transfer of immovable property by a citizen to the State or inter-se two citizens is permitted through exchange of letters or affidavits, it would lay down an unprecedented and unique but absolutely illegal mode of transfer of property and immovable property would, then, become capable of being transferred completely dehors the provisions of the Transfer of Property Act, Registration Act or any other law governing creation of rights in immovable property.”

The Court observed that the transfer of property of the plaintiff-respondent to the appellant-defendant (Catholic Diocese) was done illegally by the State. Applying the Latin legal phrase fīat iūstitia ruat cælum which means "Let justice be done though the heavens fall", Justice Kshitij Shailendra held that the appellant- Catholic Diocese Of Gorakhpur and the State must bear the consequences of the illegal action against the plaintiff-respondent.

While imposing a cost of Rs. 10 lakhs, the Court observed that

“since taking over possession over the plaintiff's land by the State and the appellant, joining hands together and with the aid of the entire State machinery at district and secretariate level by manipulating documents, one after another, has resulted in depriving the plaintiff and his legal heirs of user, occupation, possession and utilisation of their immovable property for a period of more than 32 years, this Court thinks it just and proper to award exemplary cost and damages against both the defendants.”

Case Background

Plaintiff-respondent filed a suit claiming his Bhumidari over the disputed land. While his statement was pending before the Competent Authority under Urban Land (Ceiling and Regulation) Act, 1976, the defendant-appellants started raising constructions on the land. Upon objection by the plaintiff, the defendants threatened him and told him regarding building a hospital on the land. Plaintiff pleaded that the State Government had executed the lease in favour of Appellant without having any rights to do so. Lastly, it was pleaded that the land had not been declared a vacant land so as to enable the Appellant to take possession of the land.

The Trial Court held that the plaintiff had himself relinquished the title by submitting application 157-A and affidavit 160-C before the District Magistrate, Gorakhpur. Thereafter, the possession was handed over to the District Magistrate and lease deed was executed by the State in favour of the Catholic Diocese Of Gorakhpur. Accordingly, the suit was dismissed.

The First Appellate Court allowed the appeal of the plaintiff and directed the appellant herein to remove the boundary wall. The First Appellate Court observed that the plaintiff was the co-sharer in the property and only the co-sharer's portion had been declared vacant, not the plaintiff's. Since the disputed land had not been declared vacant, any application to that effect before the DM would be involuntary or deemed to be under mistaken belief. It was held that even otherwise surrender of land was against the provisions of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950.

Appellant-defendant challenged this order.

High Court Verdict

The Court rejected the submission of the appellant that the land had been transferred by the plaintiff based on the admissions made in the affidavits filed. It was held that the immovable property cannot be deemed transferred on mere admission. It was held that admission is merely an evidence which must be taken into consideration along with the circumstances under which the same was made.

“Admission can also be shown to be erroneous or untrue, so long as the person to whom it was made acted upon it to his detriment.”

The Court observed that all evidence produced before the Trial Court revealed that only the land owned by Lallan (co-sharer) was declared surplus and there was no evidence regarding plaintiff's land being declared surplus or vacant ever.

Examining the definitions of “exchange” as provided in Transfer of Property Act, 1882 and Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950, the Court held that if transfer of immovable property is recognised by way of exchange deed or affidavits then it would lead to unprecedented situations where immovable property will be transferred in violation of Transfer of Property Act, Registration Act or any other law which creates rights in immovable property.

The Court held that for transfer of property by lease for 90 years to the appellant could only be proper if the initial transfer by the plaintiff to the State was valid, which was not proper and not in accordance with law.

Appellant relied on Section 10(3) of the Urban Land (Ceiling and Regulation) Act, 1976 to state that “voluntarily surrendering and delivering possession” is included in “vesting”. Reliance was placed on State of U.P. vs Hari Ram, where the Supreme Court held that “The 'vesting' in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession.”

Justice Shailendra held that the judgment in Hari Ram was not applicable to the present case as there was no voluntary surrender of the property and the land of the plaintiff was never declared surplus or vacant under the Act.

“A bare perusal of sub-section (3) of Section 10 would reveal that it speaks of deemed vesting absolutely in the State Government, but uses words “such land”, which means that the land which, being in excess of the ceiling limit, had been declared as vacant. By no stretch of imagination, vesting or deemed vesting or absolute vesting or voluntary surrender can be understood in respect of land, which was exempted from ceiling proceedings..”

The Court that the plot was never vested in the State legally. It was observed that qua the State, the order of the First Appellate Authority had become final as it had not been challenged by the State.

Further, the Court observed that the lease was signed and executed in after filing of the original suit by the plaintiff, which showed that it was done deliberately to the detriment of the plaintiff.

“Therefore, the action of the respondents is nothing, but apparently property grabbing by the State officials to the detriment of the interest of a rustic tenure holder, who fell as a prey in the sharp and deadly jaws of giant administrative machinery run by the State in collusion with the appellant..”

Regarding the claim of the appellant having spent huge amounts in construction, the Court held that it did not act as estoppel as the property had never been voluntarily surrendered by the plaintiff.

Accordingly, the appeal was dismissed that the order of the First Appellate Authority in favour of the plaintiff-respondent was upheld and cost of Rs. 10 lakhs was imposed on both the Catholic Diocese Of Gorakhpur as well as the State, payable to the plaintiff.

Case Title: The Catholic Diocese Of Gorakhpur Through Its President v. Bhola Deceased And 4 Others [SECOND APPEAL No. - 461 of 2014]

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