[1]

AFR

Reserved on 24.10.2019

Delivered on 06.11.2019

Court No. - 21

Case :- WRIT - C No. - 36346 of 2014

Petitioner :- Ikrar And 5 Others

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Madhusudan Dixit

Counsel for Respondent :- C.S.C.,Satyendra Pratap Singh,Sri S.P. Singh

Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Rohit Ranjan Agarwal,J.

(Delivered by Hon’ble Rohit Ranjan Agarwal, J.)

1.Present petition has been filed assailing the order dated 5.5.2014

passed by Collector, Saharanpur rejecting the representation of

petitioners, as well as for seeking direction upon the respondents not to

interfere in possesssion over Khasra No.12M and 19M measuring

11479.47 sq.mtr situated in Village Fatehpur Jat, District Saharanpur and

also for direction to correct revenue records, and record names of

petitioners over the land declared vacant in proceedings under the Urban

Land (Ceiling and Regulation) Act, 1976 (for short “Act No.33 of 1976”).

2.Brief facts which emerges from the material on record, are that

petitioners who are 6 in numbers are sons of late Iqbal, who filed

statement under Section 6(1) of the Act, stating that plot no.12 and 19

were his agricultural land and was outside the purview of Act of 1976.

Notices under Section 8(3) of the Act was issued on 17.8.1978 stating that

out of total area of land measuring 13479.47 sq. mtr., 11479.47 sq. mtr.

was being declared surplus leaving behind 2000 sq. mtr. in khasra no.12M

and 19M in village- Fatehpur Jat. On 26.10.1978, the competent authority

declared the aforesaid land as vacant.

3.Notification under Section 10(1) was made on 29.11.1978 and

under Section 10(3) on 20.02.1990. Notices u/s. 10(5) were issued on

15.04.1993, however, according to petitioners, the said notices were never

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served upon them. It is further averred that father of the petitioners till his

death, sowed his crop over the land, which is evident from khasra of year

2010-11 and was in complete physical possession over the land. It has

further been stated that no notice u/s. 10(6) of the Act was issued by

respondents for forceful dispossession of their late father, nor he was

dispossessed from the land in question, and they are in complete actual

physical possession over the land in dispute till date.

4.Petitioners filed Writ Petition No. 3367 of 2007 before this Court,

which was disposed of on 31.03.2010, with a direction to the petitioners

to file a representation before respondent no.2, who shall pass appropriate

orders in accordance with law after giving opportunity of hearing. The

representation was decided on 05.05.2014 by respondent no.2, who held

that the possession of land had already been taken by Tehsildar, Sadar on

31.07.1993 and the land in question is recorded in the name of State

Government in revenue records since 21.08.1993, and further on

19.02.2002, the land was transferred to Saharanpur Development

Authority. The order of respondent no.2 is under challenge in present

petition.

5.Respondent-State filed a counter affidavit stating that the

possession of land has been taken on 31.07.1993 and the name of State

Government has been recorded in the revenue records. Further, the

possession memo has been brought on record as CA-2.

6.During the pendency of above writ petition, an Impleadment

Application No.6 of 2019 was filed for impleading Saharanpur

Development Authority as one of the respondent. On 22.04.2019, the

amendment application was allowed and necessary correction in the array

of parties was made. The matter was listed on 15.05.2019, thereafter on

16.05.2019. On 20.05.2019, learned Standing Counsel produced the

original records of the case before the Court. This Court after perusal of

the records passed following order:-

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“Learned Standing Counsel has produced the original record.

We have perused the same.

The possession memo bears only signature of Tehsildar and Lekhpal,

Chandrapal Sharma, there is no signatures of the petitioners and

witnesses.

It is urged by learned counsel for petitioners that the Tehsildar is not

appropriate Authority to take the possession of the land in view of

Rules 1983.

Learned Standing Counsel has not disputed the said fact.

Our attention has been drawn to the impugned order passed by the

District Magistrate dated 5th May, 2014, wherein it is mentioned that

after issuance of notice dated 15th April, 1993 under Section 10 (5)

of the Act, the Tehsildar Sadar has taken possession of the land on

31

st

July,1993.

On 17th July, 2014, all the respondents were granted four weeks time

to file counter affidavit.

The State has filed its counter affidavit, which is taken on record.

The Saharanpur Development Authority has been impleaded on

22.04.2019 in the interest of justice six weeks time is granted to file

counter affidavit.

Put up this case in the additional cause list before this Bench as a

part heard on 19th July, 2019.

The original records are returned to learned Standing Counsel. ”

7.Counsel for the Saharanpur Development Authority was granted six

weeks time to file counter affidavit. When the matter was again listed on

19.07.2019, Counsel for the Saharanpur Development Authority was not

present and the case was adjourned. Again, the matter was listed on

27.09.2019 and as a last opportunity, six weeks and no more time was

granted to the counsel for Development Authority to file counter affidavit

and the matter was posted peremptorily for 24.10.2019. On the said date

again Counsel for the Saharanpur Development Authority was not present,

neither any counter affidavit was filed on behalf of the Development

Authority, thus we had no option but to proceed and decide the matter.

8.Counsel for the petitioners submitted that after coming of the

Repeal Act, proceedings under the Urban Ceiling Act in view of Section 3

stood abated. As no actual possession has been taken in terms of sub-

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section 5 of Section 10 and sub-section 6 of Section 10 of the Act, 1976.

He further submitted that no notice under sub-section 5 of Section 10 was

served on the petitioners, nor the tenure holders have handed over the

possession to Collector, which is evident from the material on record. He

further submitted that from pleadings of respondent-State in their counter

affidavit, it is clear that no recourse to sub-section 6 of Section 10 has

been taken for forcible possession by the State. Moreover, State has failed

to point out any document in the original record showing taking over the

physical possession.

9.He further invited the attention of the Court to the Dakhalnama,

which has been brought on record by the State in their counter affidavit as

well as in the original records, which shows that possession was taken

over by Tehsildaar, which is not an appropriate authority to take

possession of the land in view of Rules, 1983 and further it does not bear

the signature or thumb impression of the tenure holder. This fact clearly

demonstrates that petitioners have not handed over possession voluntarily

to the State pursuant to notice issued under sub-section 5 of Section 10 of

the Act, 1976, as such proceedings stood abated as tenure holders are still

in possession over the land.

10.Sri Dixit had further relied upon judgment of Apex Court in cases

of State of U.P. Vs. Hari Ram, 2013 (4) SCC 280 and Banda

Development Authority Vs. Moti lal Agarwal and Others, 2011 Law Suit

(SC) 411 and judgment of this Court in State of U.P. & Another Vs. Nek

Singh, 2010 Law Suit (Alld.) 3581, Ram Chandra Pandey vs. State of

U.P. & Others, 2010 (82) ALR 136, Ehsan Vs. State of U.P. & Others,

Writ C No.21009 of 2012, Lalji Vs. State of U.P. & Others, 2018 (5) ADJ

566, Yaseen & Others Vs. State of U.P. & Others, 2014 (4) ADJ 305

(DB), Mohammad Suaif & Another Vs. State of U.P. & Others, Writ C

No.12696 of 2009 decided on 07.05.2019, Mohammad Islam & Another

Vs. State of U.P. & Others, Writ C No.15864 of 2015 decided on

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04.12.2017, State of U.P. Vs. Ruknuddin & Others, Writ C No.54830 of

2011 decided on 03.10.2018.

11.Learned Standing Counsel defending the action of State

Government as well as order passed by Collector, Saharanpur on

05.05.2014, submitted that possession of surplus land was taken on

31.07.1993, pursuant to notice under sub-section 5 of Section 10 issued

on 15.04.1993, which was duly served upon wife of the tenure holder by

process server on 24.08.1993, and name of the State Government was

mutated in revenue records over the vacant piece of land. Subsequently,

on 19.02.2002, land in question was transferred in favour of Saharanpur

Development Authority, as such, claim of petitioner that pursuant to

Repeal Act, proceedings stood abated, cannot be accepted as possession

was duly taken in accordance with law and vacant piece of land was

transferred in favour of Saharanpur Development Authority.

12.We had summoned the original records as there was a serious

dispute with regard to taking of physical possession of the surplus land.

13.We have perused the original records. From perusal of possession

memo dated 31.07.1993, it is clear that the Tehsildar, Saharanpur and

Chandrapal Sharma, Lekhpal has taken the possession of the land on

31.07.1993 but possession memo does not bear the signature of the

person, who has transferred the land, nor of any witness.

14.We have heard Sri Madhusudan Dixit, learned counsel for the

petitioners, learned Standing Counsel for respondent nos.1, 2 & 3 and

have perused the material on record.

15.It is not in dispute that proceedings under Act No.33 of 1976 was

initiated against father of petitioners in year 1978 for declaring surplus

land. It is also not in dispute that notices u/s. 10(1) and 10(3) were issued.

Notice under sub-section 5 of Section 10, which is alleged to have been

issued on 15.04.1993, according to petitioners was not served upon the

tenure holder, while State has categorically submitted that it was served

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upon wife of the tenure holder through process server on 24.08.1993.

However, as per the State, possession was taken on 31.07.1993 by the

Tehsildar Saharanpur, alongwith Lekhpal copy of dakhalnama has been

brought on record, which demonstrates the fact that it does not bear the

signature or thumb impression of the person, who has transferred the

possession, nor of any witness, while it only bears the signature of the

person receiving the possession.

16.Collector, Saharanpur, while passing the order impugned had held

that possession has been taken over by the Tehsildar pursuant to notice

under Section 10(5) of the Act on 31.07.1993, thus it is an accepted fact

that the possession over the vacant land has been taken over by the

Tehsildar and not by the appropriate authority as envisaged under the

Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of

Amount and Allied Matters) Directions, 1983 (Directions issued by the

State Government under Section 35 of the Act, 1976), which is

reproduced below:-

“The Uttar Pradesh Urban Land Ceiling (Taking of Possession,

Payment of Amount and Allied Matters) Directions, 1983 (Directions

issued by the State Government under Section 35 of 1976 Act):

"In exercise of the powers under Section 35 of the Urban Land

(Ceiling and Regulation) Act, 1976 (Act No.33 of 1976), the

Governor is pleased to issue the following directions relating to the

powers and duties of the competent authority in respect of amount

referred to in Section 11 of the aforesaid Act to the person or persons

entitled thereto:

1. Short title, application and commencement.-- These

Directions may be called the Uttar Pradesh Urban Land Ceiling

(Taking of Possession, Payment of Amount and Allied Matters)

Directions, 1983

(2) The provisions contained in this direction shall be

subjected to the provisions of any directions or rules or orders issued

by the Central Government with such directions or rules or orders.

(3) They shall come into force with effect from the date of

publication in the gazette.

2. Definitions.--* * *

3. Procedure for taking possession of vacant land in excess of

ceiling limit.--(1) The competent authority will maintain a register in

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Form No.ULC -1 for each case regarding which notification under

sub-section (3) of Section 10 of the Act is published in the gazette.

4. (1) * * *

(2) An order in Form No. ULC-II will be sent to each land

holder as prescribed under sub-section (5) of Section 109 of the Act

and the date of issue and service of the order will be entered in

Column 8 of Form No. ULC-I.

(3) On possession of the excess vacant land being taken in

accordance with the provisions of sub-section (5) or sub-section (6)

of Section 10 of the Act, entries will be made in a register in Form

ULC-III and also in Column 9 of the Form No. ULC-1. The

competent authority shall in token of verification of the entries, put

his signatures in Column 11 of Form No. ULC-1 and Column 10 of

Form No. ULC-III.

Form No. ULC-1

Register of notice under Sections 10(3) and 10(5)

(1)(2) (3)(4)(5)(6)(7)(8) (9)(10)(11)

Sl.

No.

Sl. No.

of

register

of

receipt

Sl. No.

of

register

of taking

possessi

on

Case

Nu-

mber

Date

of

Notif-

ication

under

Section

10(3)

Land

to be

acqui-

red

village

Mohali

Date

of

taki-

ng

over

poss-

essio

n

Re-

marks

Signature

of

competent

authority

Form No. ULC-II

Notice order under Section 10(5)

[See clause (2) of Direction (3)]

In the court of competent authority

U.L.C.............…

No..................………Date .................

Sri/Smt............................… T/o .....................…...

In exercise of the powers vested under Section 10(5) of the

Urban Land (Ceiling and Regulation) Act, 1976 (Act No.33 of 1976),

you are hereby informed that vide Notification No....... dated .....

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under Section 10(1) published in Uttar Pradesh Gazette dated ......

following land has vested absolutely in the State free from all

encumbrances as a consequence Notification under Section 10(3)

published in Uttar Pradesh Gazette dated ....... Notification No.........

dated .... With effect from .......... you are hereby ordered to surrender

or deliver the possession of the land to the Collector of the District

Authorised in this behalf under Notification No.324/II-27- U.C.77

dated February 9, 1977, published in the gazette, dated March 12,

1977, within thirty days from the date of receipt of this order

otherwise action under sub-section (6) of Section 10 of the Act will

follow.

Description of vacant land

Location Khasra No.

identification

Area Remarks

1 2 3 4

Competent Authority

...............................

...............................

No. ....................… Dated.............................

Copy forwarded to the Collector ............ with the request that action for

immediate taking over of the possession of the above detailed surplus land and

its proper maintenance may, kindly be taken an intimation be given to the

undersigned along with the copy of certificate to verify.

Competent Authority

...............................

...............................”

17.Thus, possession taken by the Tehsildar is against the directions

issued by the State Government u/s. 35 of the Act, 1976, which envisages

that it is the Collector, who is competent and authorized to take

possession.

18.The Supreme Court in case of Hari Ram (Supra) had laid down

detailed procedure for taking possession of the surplus land. The Supreme

Court distinguished between voluntary surrender made under sub-section

3 of Section 10, peaceful dispossession under sub-section 5 of Section 10

and forceful dispossession made under sub-section 6 of Section 10,

relevant paragraphs are extracted here as under:-

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“30. Vacant land, it may be noted, is not actually acquired but

deemed to have been acquired, in that deeming things to be what they

are not. Acquisition, therefore, does not take possession unless there

is an indication to the contrary. It is trite law that in construing a

deeming provision, it is necessary to bear in mind the legislative

purpose. The purpose of the Act is to impose ceiling on vacant land,

for the acquisition of land in excess of the ceiling limit thereby to

regulate construction on such lands, to prevent concentration of

urban lands in hands of few persons, so as to bring about equitable

distribution. For achieving that object, various procedures have to be

followed for acquisition and vesting. When we look at those words in

the above setting and the provisions to follow such as sub-sections

(5) and (6) of Section 10, the words "acquired" and "vested" have

different meaning and content. Under Section 10(3), what is vested is

de jure possession not de facto, for more reasons than one because

we are testing the expression on a statutory hypothesis and such an

hypothesis can be carried only to the extent necessary to achieve the

legislative intent.

Voluntary surrender

31. 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. The Court in Maharaj Singh v. State of U.P.13, while

interpreting Section 117(1) of the U.P. Zamindari Abolition and Land

Reforms Act, 1950 held that "vesting" is a word of slippery import

and has many meaning and the context controls the text and the

purpose and scheme project the particular semantic shade or nuance

of meaning. The Court in Rajendra Kumar v. Kalyan14 held as

follows: (SCC p. 114, para 28)

"28. ...We do find some contentious substance in the contextual

facts, since vesting shall have to be a "vesting" certain. 'To

"vest", generally means to give a property in.' (Per Brett, L.J.

Coverdale v. Charlton15 : Stroud's Judicial Dictionary, 5th

Edn. Vol. VI.) Vesting in favour of the unborn person and in the

contextual facts on the basis of a subsequent adoption after

about 50 years without any authorization cannot however but

be termed to be a contingent event. To 'vest', cannot be termed

to be an executor devise. Be it noted however, that 'vested' does

not necessarily and always mean 'vest in possession' but

includes 'vest in interest' as well."

32. We are of the view that so far as the present case is

concerned, the word "vesting" takes in every interest in the property

including de jure possession and, not de facto but it is always open to

a person to voluntarily surrender and deliver possession, under

Section 10(3) of the Act.

33. Before we examine sub-section (5) and sub-section (6) of

Section 10, let us examine the meaning of sub-section (4) of Section

10 of the Act, which says that during the period commencing on the

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date of publication under sub-section (1), ending with the day

specified in the declaration made under sub-section (3), no person

shall transfer by way of sale, mortgage, gift or otherwise, any excess

vacant land, specified in the notification and any such transfer made

in contravention of the Act shall be deemed to be null and void.

Further, it also says that no person shall alter or cause to be altered

the use of such excess vacant land. Therefore, from the date of

publication of the notification under sub-section (1) and ending with

the date specified in the declaration made in sub-section (3), there is

no question of disturbing the possession of a person, the possession,

therefore, continues to be with the holder of the land.

Peaceful dispossession

34. Sub-section (5) of Section 10, for the first time, speaks of

"possession" which says where any land is vested in the State

Government under sub-section (3) of Section 10, the competent

authority may, by notice in writing, order any person, who may be in

possession of it to surrender or transfer possession to the State

Government or to any other person, duly authorized by the State

Government.

35. If de facto possession has already passed on to the State

Government by the two deeming provisions under sub-section (3) to

Section 10, there is no necessity of using the expression "where any

land is vested" under sub-section (5) to Section 10. Surrendering or

transfer of possession under sub-section (3) to Section 10 can be

voluntary so that the person may get the compensation as provided

under Section 11 of the Act early. Once there is no voluntary

surrender or delivery of possession, necessarily the State

Government has to issue notice in writing under sub-section (5) to

Section 10 to surrender or deliver possession. Sub-section (5) of

Section 10 visualizes a situation of surrendering and delivering

possession, peacefully while sub-section (6) of Section 10

contemplates a situation of forceful dispossession.

Forceful dispossession

36. The Act provides for forceful dispossession but only when a

person refuses or fails to comply with an order under sub-section (5)

of Section 10. Sub-section (6) to Section 10 again speaks of

"possession" which says, if any person refuses or fails to comply with

the order made under sub-section (5), the competent authority may

take possession of the vacant land to be given to the State

Government and for that purpose, force - as may be necessary - can

be used. Sub-section (6), therefore, contemplates a situation of a

person refusing or fails to comply with the order under sub-section

(5), in the event of which the competent authority may take

possession by use of force. Forcible dispossession of the land,

therefore, is being resorted only in a situation which falls under sub-

section (6) and not under sub-section (5) to Section 10. Sub-sections

(5) and (6), therefore, take care of both the situations, i.e. taking

possession by giving notice that is "peaceful dispossession" and on

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failure to surrender or give delivery of possession under Section

10(5), than "forceful dispossession" under sub-section (6) of Section

10.”

19.Similar issue in regard to peaceful and forceful possession in terms

of sub-section 5 and 6 of Section 10 of the Act cropped up before the

Apex Court, which was considered by it in case of Gajanan Kamlya Patil

Vs. Addl. Collector & Comp. Auth. & Ors, JT 2014 (3) SC 2011, which

followed the earlier decision in case of Hari Ram (supra). In yet another

case, in Special Leave Petition (C) No.17799 of 2015 (supra), the Apex

Court held after perusing the original records that possession was not

taken by the competent authority or his authorized representative by

following procedure laid down under Section 10(5) and Section 10(6) of

the Act, 1976 declined to interfere in the order impugned.

20.A Division Bench of this Court in case of Nek Singh (supra),

Ruknuddin (supra), Ramchandra Pandey (supra), and Ehsan (supra) was

also of the view that possession had been taken from tenure holder

without complying provision of Section 10(5) and 10(6) of the Act, 1976.

21.Pertinently, in respect of Saharanpur Development Authority, same

issue was considered in case of Rati Ram Vs. State of U.P. and Others,

2018 (4) ALJ 338, wherein this Court held as under:-

“8. The 'Dakhalnama' a certified copy whereof has been produced

before us does not even bear the signatures of any attesting witness.

We find this to be a lapse and patent illegality the benefit whereof has

to be given to the land holder in view of the Division Bench judgment

in the case of Mohd. Islam and 3 others v. State of U.P. and 2 others,

Writ Petition No. 15864 of 2015 decided on 4th December, 2017. It

was also a case of District- Saharanpur. We extract paragraph Nos.

44 to 47 of the said judgment which are as under:

"44. Since, in the present case, neither factum of taking actual

physical possession by Competent Authority under Ceiling Act

has been fortified by placing any document nor factum of

possession of Development Authority at any point of time has

been shown, therefore, argument advanced by learned

Standing Counsel on the basis of State of Assam (supra) will

not help.

45. Viewed from the above exposition of law we find in the

present case that no such exercise of issuing notice under

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Section 10(6) of the Act, 1976 and thereafter execution of

memo on the spot had taken place which is mandatory for

ceiling authorities as admittedly the original tenure-holder

and then his successors had never voluntarily surrendered the

possession of land. In the absence of voluntary surrender of

possession of surplus land, the authorities were required to

proceed with forcible possession. The document of possession

memo would not by itself evidence the actual taking of

possession unless it is witnessed by two independent persons

acknowledging the act of forcible possession. As discussed

above in the earlier part of this. judgment we are not able to

accept the alleged possession memo worth calling a document

as such in the absence of certain requisites, nor does it bear

the details of witnesses who signed the document. It bears

mainly signatures of Chackbandi Lekhpal, a person taking

possession and then the document has been directed to be kept

on file. This is no way of taking forcible possession nor, a

document worth calling possession memo. A mere issuance of

notification under Section 10(3) and notice under Section

10(5) regarding delivery of possession does not amount to

actual delivery of possession of land more especially in the

face of the fact that the tenureholder had in fact not

voluntarily made surrender of possession of surplus land and

no proceeding under Section 10(6) had taken place.

46. Since, we have held that possession memo dated

20.06.1993 is not a possession memo and is a void document

for want of necessary compliance under Section 10(6) of the

Act, 1976, the petitioners are entitled to the benefit under

Section 4 of the Repeal Act, 1999 that came into force w.e.f.

20.03.1999.

47. We may also place on record that respondents claim that

possession of land in question was handed over to Saharanpur

Development Authority pursuant to Government Order dated

29.12.1984 but here also we find that no material has been

placed on record to show that any such actual physical

possession was handed over to Saharanpur Development

Authority and the said authority is in de facto possession of

land in dispute. Except bare averment made in the counter-

affidavit respondent have not chosen to place anything on

record to support the stand that de facto possession over land

in dispute is that of Saharanpur Development Authority.

Therefore even this stand has no legs to stand and is

rejected.”

22.This Court in Writ C No. 31072 of 2009, Gayur and Another Vs.

State of U.P. and Others, decided on 20.08.2019 faced with a similar

situation, wherein respondent-State had only produced the memo of

possession/dakhalnama and there was no other material to indicate that

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land was legally transferred to the Saharanpur Development Authority,

held that the ceiling proceeding stood lapse and petitioners were entitled

for land in question, which has been declared surplus land held as under:-

“Keeping in the mind the principle laid down by the Supreme

Court and this Court, as indicated in the authorities referred herein-

before, we find that in the counter affidavit the State has taken a very

general and vague stand about the possession. In Paragraph-4 of the

counter affidavit of the State the only averment made in this regard is

that the process server personally served the notice under Section

10(5) of the Act, 1976 on 20th November, 1987. It is also averred

therein that "It is further stated that after adopting all proceeding

according to law on the aforesaid declared surplus land the

possession of the State Government has been taken on 31.11.1987". It

is not mentioned in the counter affidavit that the petitioners have

given voluntary possession after receiving the notice under Section

10(5) of the Act, 1976. From the original record it was evident that

there was no material to show that the petitioners have given

voluntary possession to the State authorities after receiving the

notice under Section 10(5). If they had not given the voluntary

possession then the only course open to the authorities was to take

forceful possession under Section 10(6) of the Act, 1976. There is no

material on the record or averment made in the counter affidavit to

show that the forceful possession was taken from the petitioners

under Section 10(6) of the Act, 1976. In the counter affidavit filed on

behalf of the State, the name of the officer, who has taken the

possession, is not disclosed. However, in the counter affidavit filed by

the Saharanpur Development Authority it is stated that the Tehsildar

has taken the possession. As mentioned above, the only document

which is on the record to indicate taking over the possession is a

memo dated 31st November, 1987. The said date has been mentioned

in several paragraphs of the counter affidavits of the State and the

Saharanpur Development Authority. The said document does not

inspire any confidence. There are only thirty days in the month of

November. So, apparently 31st November is a wrong date. As held by

the Supreme Court in Hari Ram (supra) and the directions issued by

the State Government in the Directions, 1983 as well as the

Government Order dated 29th September, 2015, we find that the

possession has not been taken in terms of the Directions, 1983 and

the Government Order. The Revenue Inspector and the Lekhpal are

not authorized to take possession as held in a large number of cases

mentioned above.

As regards the stand of the State that the possession has been

handed over to the Saharanpur Development Authority, we find that

except the memo of possession/ Dakhalnama, there is no other

material to indicate that the possession was legally handed over to

the Saharanpur Development Authority. Pertinently, in the

Dakhalnama it is recorded that the land is agricultural. We find merit

in the submission of the petitioners that agricultural land cannot be

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declared surplus. But this issue was not raised seriously, hence we

are not recording any finding on this issue. In the counter affidavit

filed by the Saharanpur Development Authority the alleged

possession is stated to have been taken on 29th January, 2002 but no

detail has been mentioned regarding the construction, which has

been raised. As regards the claim of the respondents that possession

of the land was handed over to the Saharanpur Development

Authority, we find that the proceedings stood abated in terms of

section 4 of the Repeal Act, therefore, any subsequent transfer is non

est. ”

23.In case, in hand, only notice under Section 10(5) of the Act was

issued to petitioners, but no voluntary possession was given by them, as is

evident from original record to the State authorities. If, voluntary

possession was not given, then only recourse open to the authorities, was

to take forcible possession under Section 10(6) of the Act, 1976. There is

no material on record or averment made in the counter affidavit, nor it is

case of the State functionaries that forcible possession was taken from

petitioners under Section 10(6) of the Act, 1976. In the counter affidavit,

name of the officers, who have taken possession, has not been disclosed,

and it is only stand of the State that possession was taken by Tehsildar.

While, from perusal of original memo of possession/dakhalnama, it is

evident that possession was taken by Tehsildar and one Chandrapal

Sharma, Lekhpal, and there is no signature of any attesting witness.

24.Thus, in view of judgment of the Apex Court in Hari Ram (supra)

and directions issued by State Government in Directions, 1983 as well as

Government Order dated 29.09.2015, we find that possession has not been

taken in terms of the Directions, 1983 and Government Order. The

Tehsildar and Lekhpal are not authorized person to take possession as

held in large number of cases mentioned above.

25.In addition to above, as discussed above, there is no material on

record to demonstrate that actual possession was handed over to the

Saharanpur Development Authority on 19.02.2002 after possession

having been taken by the State authorities, as claimed according to memo

of possession/dakhalnama dated 31.07.1993 by the Tehsildar, who is not a

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competent authority or a person authorized to take possession in terms of

Directions, 1983 and Government Order of 2015.

26.Further, the Development Authority has also not filed any counter

affidavit despite being given sufficient opportunity, nor their Counsel

turned up during the course of argument. The only stand taken by State

functionaries are that notice u/s. 10(5) was served on wife of tenure holder

by process server on 24.08.1993, except the said fact, the State had failed

to establish that actual physical possession over the vacant piece of land

was taken, as the memo of possession/dakhalnama clearly demonstrates

that there is no signature of the person delivering the possession, nor of

any attesting witness, which is in teeth of the procedure laid down in case

of Hari Ram (supra) except this fact no averment in the counter affidavit

nor any submission on behalf of the State has been made.

27.Collector, Saharanpur also, while deciding the representation of the

petitioners has relied upon the possession taken by the Tehsildar in the

year, 1993 and possession subsequently being transferred through

Saharanpur Development Authority in the year 2002, except this, he has

failed to adjudicate on the issue as to how Tehsildar was authorized or

competent to take possession in terms of the Directions, 1983, which had

been issued by the Government u/s. 35 of the Act, 1976 and has statutory

flavour.

28.In view of the above, we are of the considered opinion that if

possession has not been taken in terms of Section 10(5) and 10(6) of the

Act, 1976, petitioners are entitled for the benefit under Section 3 and 4 of

the Repeal Act.

29.For the reasons stated above, we find that the ceiling proceedings

stood lapse and petitioners are entitled for the land in question, which has

been declared surplus. The order impugned dated 05.05.2014 is hereby

quashed and writ petition stands allowed.

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30.Petitioners may apply before the authorities for expunging name of

State Government from the revenue records and mutating their names.

Order Date :- 06.11.2019

S. Singh