Mohammad Suaif And Another Vs. State Of U.P. Thru Secy. Urban Planning And Others Case Summary You Can Listen To on Caseon

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Mohammad Suaif And Another Vs. State Of U.P. Thru Secy. Urban Planning And Others

Allahabad High Court Writ - C No. - 12696 Of 2009

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Court No. - 21

Case :- WRIT - C No. - 12696 of 2009

Petitioner :- Mohammad Suaif And Another

Respondent :- State Of U.P. Thru Secy. Urban Planning And

Others

Counsel for Petitioner :- Pankaj Agrawal,Madhusudan Dixit

Counsel for Respondent :- C.S.C.

With

Case :- WRIT - C No. - 12665 of 2009

Petitioner :- Imranulla And Another

Respondent :- State Of U.P. Thru Secy. Urban Planning And Others

Counsel for Petitioner :- Pankaj Agrawal,Madhusudan Dikshit

Counsel for Respondent :- C.S.C.

With

Case :- WRIT - C No. - 12695 of 2009

Petitioner :- Haseen Fatima And Another

Respondent :- State Of U.P. Thru Secy. Urban Planning And Others

Counsel for Petitioner :- Madhusudan Dikshit, Pankaj Agrawal

Counsel for Respondent :- C.S.C.

Hon'ble Pradeep Kumar Singh Baghel, J.

Hon'ble Pankaj Bhatia, J.

( Delivered by Hon. Pankaj Bhatia, J.)

Heard learned counsel for the petitioners and learned counsel for the

State.

The present petition has been filed by the petitioners mainly seeking a

writ of mandamus declaring the entire proceedings initiated against the

petitioners under the Urban Land (Ceiling and Regulation) Act No.36 of

Neutral Citation No. - 2019:AHC:79590-DB

1976 as abated in view of the Repealing Act of 1999.

The facts in brief, in all the above said three writ petitions, narrated

separately, are being decided together by this common judgement.

The facts in the case of Mohammad Suaif, Writ Petition No.12696 of

2009, are as under:-

The original land holding was held by the grand father of the

petitioner late Anwarul Haq who was the original tenure holder of

Khasra Plot nos.219, 220(M), 221(M), 277(M), 184/1, 185/1(M),

561/3(M), 210/1(M), & 276, total measuring 1789.92 Sq. Meters

situated at village Dara Shivpuri Swadvai District Saharanpur. After

his death, his three sons became the owners of the entire property and

ultimately the property was succeeded by the petitioners. It is stated

that the petitioners filed return under Section 6 (1) of the Urban Land

(Ceiling and Regulation) Act No.33 of 1976 (herein after referred to as

'the Act') and a draft statement was prepared under Section 8 (3) of the

said Act. The land was declared as surplus land on 23.3.1979 by the

competent authority under the Urban Land Ceiling Act. It is

specifically averred that the names of the petitioners continued in the

revenue records and a specific assertion is made that the petitioners are

in actual physical possession of the plots in question. It is stated that as

on the date of Repeal of the Act, the petitioner's name was duly

recorded over the property in dispute and the name of State

Government was not mutated in the revenue record nor was the actual

physical possession taken nor was any possession ever given by the

petitioners in respect of the said property.

The State of Uttar Pradesh has filed a counter affidavit stating that a

notice under Section 10 (5) of the Act, was sent to the petitioners on

7.2.1996 which was served on Ikramul Haq on 12.11.1996 through the

process server and on 9.2.1987, the possession was taken voluntarily

in accordance with law. There is no denial of the averments that as on

the date of Repeal, the name of the State Government was not mutated

in the revenue records. However, it has been stated that on 28.1.2002

the land in question was transferred to Saharanpur Development

Authority and is under control of the said development authority. The

State Government has relied upon an Annexure (CA-1 to the counter

affidavit) showing the manner of taking possession. A perusal of the

said annexure reveals that no description has been given as to who has

taken the possession and even the name of the person given possession

is not recorded in the said possession note. No signatures of Lekhpal

or the Accountant are borne out from the perusal of the possession

memo. The said possession memo is dated 9.2.1987. The said

possession memo states that a declaration of possession was made.

The facts in Writ Petition No.12665 of 2009 filed by Imranullah, are

as under:-

Anwarul Haq was the original tenure holder of Khasra Plot Nos.219,

220(M), 221(M), 277(M), 184/1, 185/1(M), 561/3(M), 210/1(M) &

276, situated at village Dara Shivpuri Swadvai District Saharanpur and

after his death, his three sons inherited the entire property. The tenure

holders filed their return under Section 6 (1) of the Urban Land

(Ceiling and Regulation) Act, 1973 and after the scrutiny, a draft

statement was prepared under Section 8 (3) of the Act. Subsequently

vide order dated 22.5.1997 passed under Section 8 (4) of the Act, the

objections filed by the petitioners were rejected. It is specifically

stated that even after the passing of the order under section 8 (4) of the

Act, the names of the petitioners were recorded in the revenue records

over the said plots and it is specifically stated that at the time of

coming into force of the Repeal Act, the name of the petitioners were

duly recorded over the property in question and the name of the State

was not mutated in the revenue records nor any possession was ever

given by the petitioners and the petitioners still continue to be in the

actual physical possession of the plots in question.

A counter affidavit has been filed on behalf of the State Government

stating that a notice under Section 10 (5) of the Act was issued on

7.10.1986 which was served upon the tenure holder personally on

12.11.1986 and thereafter a possession was given voluntarily over the

surplus land on 9.2.1987 and the name of the State Government was

recorded on 20.3.1998 and also that the possession has been

transferred to Saharanpur Development Authority on 28.1.2002. The

State has filed a document as Annexure-CA-1 to demonstrate that the

possession was given voluntarily under Section 10 (5) of the Act. The

Annexure-CA-1 to the counter affidavit shows that the possession was

taken on 9.2.1987 however, the name of person taking possession is

not recorded neither the name of the person giving the possession nor

his signatures are recorded and even the said possession memo does

not bear the signatures of the Lekhpal who is said to have taken the

possession. The possession memo further records that a declaration of

possession was made through the said document.

The facts, in Writ Petition No.12695 of 2009 filed by Haseen Fatima,

are as under:-

The petitioner claims to be the owner by virtue of succession to the

property owned by the grand father of the petitioner late Anwarul Haq

bearing Plot nos.219, 220(M), 221(M), 277(M), 184/1, 185/1(M),

561/3(M), 210/1(M), & 276, total measuring 1789.92 Sq. Meters

situated at village Dara Shivpuri Swadvai District Saharanpur. The

grand father of the petitioner had filed return under Section 6 (1) of the

Act and after the scrutiny of the return, the competent authority had

prepared a draft statement under Section 8 (3) of the Act. It is stated

that even after declaring the land as surplus, the names of the ancestors

of the father of the petitioner were duly recorded in the revenue

records and even at the time of enforcement of the Repealing Act, the

names of the petitioner were duly recorded over the property in

dispute and the name of the State Government was not mutated in the

revenue records nor any possession was handed over by the petitioners

with respect to the said property. It is specifically stated that the actual

physical possession has never been taken and the petitioners are still in

actual physical possession over the property in question and by virtue

of the Repealing Act, the entire proceedings stand abated.

The State Government has filed its counter affidavit stating that after

the passing of the order dated 9.8.1979 under Section 8 (4) of the Act

publication was made in the Government Gazette on 26.8.1985 under

Section 10 (3) of the Act. It is further stated that there after a notice

under Section 10 (5) of the Act was issued on 7.10.1986 and was

served upon the tenure holder personally on 18.10.1986 and thereafter

the possession was taken on 9.2.1987 and the mutation was done on

31.1.1998. It is further brought on record that the possession was

handed over to the Saharanpur Development Authority, Saharanpur on

28.1.2002. The State Government also annexed a possession memo as

CA-1 to the counter affidavit which reveals that on 9.2.1987, the

possession was taken by representatives of the Collector. It further

records that Surjeet Singh, the land record Inspector, Halqa Lekhpal

Naseebuddin prepared the map on the spot and in the presence of

Shobha Ram, Anurakshak received the possession from Arun Kaushik

and the possession was declared. The said possession memo does not

record the signatures of the Halqa Lekhpal and does not record the

names of the person giving the possession or the person taking the

possession.

The common thread of facts in all the above three cases are that the

possession is said to have been taken voluntarily under Section 10 (5)

of the Act, there are no signatures of the person giving the possession,

the possession is not taken by the Collector, there is no authorization

in favour of any person taking possession by the State Government or

by the Collector and in all the cases the Collector has not taken the

possession himself.

Sri Madhusudan Dixit, counsel for the petitioners has specifically

argued that the actual physical possession had never been taken from

the petitioners even the symbolic possession referred to in the counter

affidavit cannot be termed as a possession taken in accordance with

law for the reason that the same has never been taken from the tenure

holders and the same has not even been taken by the person authorized

under the Act to do so. Sri Dixit further argued that in terms of the

provisions of the Act and the relevant procedure prescribed thereunder,

it is only the Collector who is empowered to take possession and he

does not have any authority to further delegate his power, as such the

possession memo relied upon by the respondents cannot be termed as

possession in accordance with law. It is also argued that in the cases

where possession is not being given by the tenure holders voluntarily

under Section 10 (5) of the Act, it was incumbent upon the

respondents to have issued notice under Section 10 (6) of the Act for

taking the actual physical possession which has not been done,

admittedly, in the present case as such the proceedings initiated under

the Urban Land (Ceiling and Regulation) Act stood abated by virtue of

the Repealing Act.

The petitioners in support of his contention, has relied upon

judgements of the Hon'ble Supreme Court as well as Allahabad High

Court, in the case of State of Uttar Pradesh Vs. Hari Ram (2013) 4

Supreme Court Cases 280, State of Uttar Pradesh and another Vs.

Nek Singh 2010 LawSuit (All) 3581, Ram Chandra Pandey Vs. State

of U.P. through Secretary, Avas, Lucknow 2010 (82) ALR 136, Ram

Singh & others Vs. State of U.P. and others 2013 (120) RD 389, Lalji

Vs. State of U.P. and 2 others 2018 LawSuit (All) 1276, and the

judgement of the Hon'ble Supreme Court in the case rendered in

Special Leave to Appeal (C) No.38922 of 2013, State of Uttar

Pradesh and another Vs. Vinod Kumar Tripathi & others.

The standing counsel has argued that in view of the fact that the

symbolic possession has already been given to the Saharanpur

Development Authority, the writ petitions are liable to be dismissed

and has placed reliance of the judgement in the case of State of Assam

Vs. Bhaskar Jyoti Sarma and others, the judgement of this Court in

Writ-C No.31059 of 2015 Jagdish Chandra Vs. State of U.P. & 2

others, Writ-C No.69503 of 2005 Smt. Savitri Singh and others Vs.

State of U.P. and others, and Civil Misc. Writ Petition No.28180 of

2007 Suresh Kumar and others Vs. State of U.P. and others. The

State Government has also relied upon the judgement of the Hon'ble

Supreme Court in the case of State of U.P. and others Vs. Surendra

Pratap & others 2016 Lawsuit (SC) 501.

The Urban (Ceiling and Regulation) Act was promulgated as Act

No.33 of 1976 and it came into force on 17.2.1976. The object of the

Act was to provide for imposition of ceiling of vacant land in urban

conglomeration and for acquisition of such lands which were held in

excess of the ceiling limits.

In terms of Act No.33 of 1976 by virtue of powers conferred under

Section 35 of the said Act. The State of Uttar Pradesh issued specific

directions prescribing the manner for taking possession known as the

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

Amount and Allied Matters) Directions, 1983.

The Act No.33 of 1976 was repealed by Section 2 of the Repeal Act,

1999 and the said Repeal Act was adopted in the State of Uttar

Pradesh on 18.3.1999. By virtue of Section 3 of the Repeal Act,

savings clause was provided, Section 3 of the Repeal Act, 1999 is

being quoted herein below:-

"Section 3 in The Urban Land (Ceiling and Regulation) Repeal Act,

1999

3. Saving.—

(1) The repeal of the principal Act shall not affect—

(a) the vesting of any vacant land under sub-section (3) of Section 10,

possession of which has been taken over the State Government or

any person duly authorized by the State Government in this behalf

or by the competent authority;

(b) the validity of any order granting exemption under sub-section (1)

of Section 20 or any action taken thereunder, notwithstanding any

judgment of any court to the contrary;

granting exemption under sub-section (1) of Section 20.

(2) Where—

(a) any land is deemed to have vested in the State Government under

sub-section (3) of Section 10 of the principal Act but possession of

which has not been taken over by the State Government or any

person duly authorized by the State Government in this behalf or by

the competent authority; and

(b) any amount has been paid by the State Government with respect to

such land then, such land shall not be restored unless the amount

paid, if any, has been refunded to the State Government."

The relevant directions issued under Section 35 of the Act No.33 of

1976 known as 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) are quoted herein 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 the Act, 1976):

“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 From

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. (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-1.

(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 u/s 10-(3) and 10(5)

12 3 4 5 6 7 8

Serial No. of

Receipt

Serial No. of

Taking

Possession

Case

number

Date of

Notific

ation

u/s 10

(3)

Land to

acquire

-d

village

Mohali

Date of

taking

over

possess

-on

RemarksSignatu

re of

compet

ent

Authori

Form NO. ULC-II

Notice order u/s 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 un/s 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 ….. 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 u/s 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 number

identification

Area Remarks

1 2 3 4

Competent Authority

………………………….

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 copy of certificate

to verify.

Competent Authority

…………….

…………..”

Based upon the facts in the writ petitions above, as well as the

statutory provisions extracted above, the questions to be determined

by this Court are;

i) whether the possession taken by the State Government can be

termed as a valid possession in accordance with law provided under

the Act No.33 of 1976 read with the Uttar Pradesh Urban Land Ceiling

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

Directions, 1983 ?

ii) whether the possession not taken inconsonance with the provisions

of the Act and Directions can be termed to be a legal possession ?

iii) whether the subsequent transfer of the land to Saharanpur

Development Authority can be a sole ground for denying the reliefs to

the petitioners ?

iv) what would be the effect of the Repeal Act, in the event the

possession is held not to be taken in accordance with the statutory

provisions ?

v) whether the judgment of the Supreme Court in the case of State of

Assam Vs. Bhaskar Jyoti Sarma and others (2015) 5 Supreme Court

Cases 321 can be applied to the cases arising in the State of Uttar

Pradesh ?

Testing the facts and the law as pleaded and argued by the counsels at

the bar, it is clear that the possession said to be taken vide the

possession memo annexed as Annexure-CA-1 to all the writ petitions

by the standing counsel has not been taken by the Collector and have

admittedly been taken by the representatives of the Collector. It is

further clear that the possession was not voluntarily handed over by

the land owners as none of the possession memo bears the signatures

of the land owners or their representative. No notice under Section 10

(6) of the Act has been issued in any of the three cases. The perusal of

the said possession memo makes it clear that the possession has not

been taken by the Collector and thus is not in accordance with the

provisions of Section 10 (5) of the Act No.33 of 1976 read with the

Directions issued under Section 35 of the Act. The directions issued

under Section 35 of the Act by the State Government have already

been quoted above.

The Supreme Court in the case of State of Uttar Pradesh Vs. Hari

Ram (Supra) while interpreting the true import of Section 10 (5) & 10

(6) of the Act, and the effect of Repeal Act has laid down as under:-

“37. Requirement of giving notice under sub-sections (5) and (6) of

Section 10 is mandatory. Though the word ‘may’ has been used

therein, the word ‘may’ in both the sub-sections has to be understood

as “shall” because a court charged with the task of enforcing the

statute needs to decide the consequences that the legislature intended

to follow from failure to implement the requirement. Effect of non-

issue of notice under sub-section (5) or sub-section (6) of Section 11 is

that it might result the land holder being dispossessed without notice,

therefore, the word ‘may’ has to be read as ‘shall’.

38. Above reasoning is in consistence with the Directions 1983 which

has been issued by the State Government in exercise of powers

conferred under Section 35 of the Act. Directions clearly indicate that

the procedure for taking possession of the vacant land in excess of the

prescribed ceiling limit, which reads as 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):

“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:

…...

39. The above-mentioned directives make it clear that sub-section (3)

takes in only de jure possession and not de facto possession, therefore,

if the land owner is not surrendering possession voluntarily under

sub-section (3) of Section 10, or surrendering or delivering possession

after notice, under Section 10(5) or dispossession by use of force, it

cannot be said that the State Government has taken possession of the

vacant land.

40. The scope of Act 33 of 1976 came up for consideration before this

Court on few occasions, reference may be made to certain judgments,

even though there has been no elaborate discussion of the provision of

the Act and its impact on the Repeal Act. Reference may be made to

Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P.,

Ghasitey Lal Sahu and Another v. Competent Authority, Mukarram

Ali Khan v. State of Uttar Pradesh and Vinayak Kashinath Shilkar v.

Deputy Collector and Competent Authority.

Effect of the Repeal Act

41. Let us now examine the effect of Section 3 of the Repeal Act 15 of

1999 on sub-section (3) to Section 10 of the Act. The Repeal Act 1999

has expressly repealed the Act 33 of 1976. The Object and Reasons of

the Repeal Act has already been referred to in the earlier part of this

Judgment. Repeal Act has, however, retained a saving clause. The

question whether a right has been acquired or liability incurred under

a statute before it is repealed will in each case depend on the

construction of the statute and the facts of the particular case.

42. The mere vesting of the land under sub-section (3) of Section 10

would not confer any right on the State Government to have de facto

possession of the vacant land unless there has been a voluntary

surrender of vacant land before 18.3.1999. State has to establish that

there has been a voluntary surrender of vacant land or surrender and

delivery of peaceful possession under sub-section (5) of Section 10 or

forceful dispossession under sub-section (6) of Section 10. On failure

to establish any of those situations, the land owner or holder can

claim the benefit of Section 3 of the Repeal Act. The State

Government in this appeal could not establish any of those situations

and hence the High Court is right in holding that the respondent is

entitled to get the benefit of Section 4 of the Repeal Act.

43. We, therefore, find no infirmity in the judgment of the High Court

and the appeal is, accordingly, dismissed so also the other appeals.

No documents have been produced by the State to show that the

respondents had been dispossessed before coming into force of the

Repeal Act and hence, the respondents are entitled to get the benefit of

Section 3 of the Repeal Act. However, there will be no order as to

costs."

The aspect of taking possession was also extensively dealt with by the

Hon'ble Supreme Court in the judgment of State of U.P. Vs. Hari

Ram (Supra) where the Hon'ble Supreme Court after analysing the

scheme of the Act held that the vesting of the property in the context

of the provisions of the Act No.33 of 1976, the Repeal Act as well as

the Directions issued under Section 35 of Act No.33 of 1976 has to be

'actual possession' and not 'symbolic possession'. However, it is open

to the land owner to voluntarily deliver the possession under Section

10 (5) of the Act.

The perusal of the said provisions noted above, makes it clear that the

competent authority by making the Rules has authorized only the

Collector to take the possession with no authority for further sub

delegation given to the Collector either under the Act or under the

Directions referred to above.

It is well settled that a delegatee cannot sub-delegate his power

without their being specific authority as has been held in the case of

State of Bombay Vs. Shiva Balak, AIR 1965 SC 661 and in the case

of NGEF Vs. Chandra, 2005 Vol. 8 SCC page 219.

The State Government issued a Government Order No.

2228@vkB&6&15& 124 ;wlh@13 dated 29

September, 2015 accepting the

judgment of the Hon'ble Supreme Court in the case of State of Uttar

Pradesh Vs. Hari Ram (Supra) and necessary directions were issued

to take steps for compliance and decision in terms of the directions in

the case of State of Uttar Pradesh Vs. Hari Ram (Supra). Copy of the

said Government Order dated 29.9.2015 is quoted herein below:-

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¼d½ ewy vf/kfu;e dh /kkjk&10 dh mi/kkjk ¼3½ ds v/khu fdlh Hkwfe dks

jkT; ljdkj es fufgr gksuk ekuh x;h gS fdUrq ftldk dCtk jkT;

ljdkj ;k jkT; ljdkj }kjk bl fufeRr lE;d :i ls izkf/kd`r fdlh

O;fDr ;k l{ke izkf/kdkjh }kjk ugh fy;k x;k % vkSj

¼x½ ,slh fdlh Hkwfe ds ckcr ftlds fy, jkT; ljdkj }kjk fdlh jde

dk lank; dj fn;k x;k gS rc rd izR;kofrZr ugh dh tk; vkSj tc rd fd

jkT; ljdkj dks lank; dh x;h jde dk ;fn dksbZ gks] izfrnk; ugh dj fn;k

tkrkA

mDr ds dze es 'kklukns'k la[;k&777@9u0Hkw0&135 ;w0 lh0@99 fnukad

09-02-2000] 'kklukns'k la[;k &1623@9& u0Hkw0&2000 fnukad 09-08-2000 ,oa

'kklukns'k la[;k& 190@9&vk&6& 2001 fnukad 24-01-2001 fuxZr fd;s x;s

ftles eq[; :i ls ;g O;oLFkk dh xbZ fd ewy vf/kfu;e /kkjk &8 ¼4½ ds

vUrxZr tks Hkwfe fjDr ?kksf"kr dh xbZ Fkh vkSj /kkjk&10 ¼3½ ds vUrxZr jkT; es

fufgr gks pqdh Fkh ,oa /kkjk&10 ¼5½ dh dk;Zokgh dk vkns'k gks pqdk Fkk ijUrq bl

Hkwfe ij jkT; ljdkj dk dCtk izkIr ugh gks ldk Fkk] ,slh Hkwfe ds lEcU/k es

ewy Hkw/kkjd dks vnk dh xbZ /kujkf'k Hkw/kkjd }kjk okil djus ij Hkwfe ewy

Hkw/kkjd dks izR;kofrZr dh tk ldrh gS fdUrq vnk dh xbZ /kujkf'k Hkw& /kkjd }

kjk okil u djus dh n'kk esa Hkwfe ij dCtk fd;s tkus ds lEcU/k es fof/k vuqlkj

vfxze dk;Zokgh vey es yk;h tk;A ;g Hkh O;oLFkk dh xbZ fd ftl Hkwfe ds

lEcU/k es /kkjk&10 ¼5½ dh dk;Zokgh ds mijkUr /kkjk&10 ¼6½ dh dk;Zokgh iwoZ gks

pqdh gS vkSj Hkwfe ij jkT; ljdkj }kjk dCtk fy;k tk pqdk gS og ljIyl Hkwfe

vfUre :i ls jkT; ljdkj esa fufgr ekuh tk;sxhA

3- uxj Hkwfe lhekjksi.k& xksj[kiqj] okjk.klh] bykgkckn] y[kuÅ] dkuiqj] vkxjk]

esjB] eqjknkckn] vyhsx<] cjsyh] lgkjuiqj es yfEcr vcZu lhfyax izdj.kksa dk

leqfpr :i ls fuLrkj.k us gksus dh fLFkfr es Hkw&/kkjdksa@okfn;ksa }kjk ek0 mPp

U;k;ky; esa vf/kd la[;k es fjV ;kfpdk;s ;ksftr dh tk jgh gSA uxj cLrh

dk;kZy;ks }kjk fjV ;kfpdkvks es foHkkxh; i{k le;kUrxZr lk{;ks lfgr izcyrk

ls izLrqr u fd;s tkus ds dkj.k ek0 U;k;ky; }kjk ikfjr vkns'kksa ds dze es

'kklu dks vleatliw.kZ fLFkfr dk lkeuk djuk iM+ jgk gSA

4- vcZu lhfyax ds vU; izdj.k es jkT; ljdkj }kjk ek0 mPppe U;k;ky; ubZ

fnYyh es fo'ks"k vuqefr ;kfpdk la[;k&12960@2008 mRrj izns'k jkT; cuke

gjhjke ;ksftr dh x;hA dkykUrj es vU; tuinksa ds vcZu lhfyax ls lacf/kr

izdj.kksa es ;ksftr fo'ks"k vuqefr ;kfpdk;s mDr fo'ks"k vuqefr ;kfpdk ls Dyc

dh x;hA mDr fo'ks"k vuqefr ;kfpdk la[;k&12960@2008 rFkk mlls Dyc vU;

fo'ks"k vuqefr ;kfpdkvks esa ikfjr ek0 mPpre U;k;ky; ds fu.kZ; fnukad 11-03-

2013 es vcZu lhfyax ls lacf/kr izdj.kksa es ekxZn'kZd fl)kUr izfrikfnr fd;s

x;s gSA fu.kZ; fnukad 11-03-2013 dk egRoiw.kZ ,oa fdz;kRed va'k fuEuor gS%&

izLrj& 39

The mere vesting of the land under sub-section (3) of Section 10 would

not confer any right on the State Government to have de facto

possession of the vacant land unless there has been a voluntary

surrender of vacant land before 18.3.1999. State has to establish that

there has been a voluntary surrender of vacant land or surrender and

delivery of peaceful possession under sub section (5) of Section 10 or

forceful dispossession under sub section (6) of Section 10. On failure

to establish any of those situations, the land owner or holder can

claim the benefit of Section 3 of the Repeal At. The Stage Government

in this appeal could not establish any of those situations and hence the

High Court is right in holding that the respondent is entitled to get the

benefit of Section 3 of the Repeal Act.

izLrj& 40

We, therefore, find no infirmity in the judgment of the High Court and

the appeal is, accordingly dismissed so also the other appeals. No

documents have been produced by the State to show that the

respondents had been dispossessed before coming into force of the

Repeal Act and hence, the respondents are entitled to get the benefit of

Section 3 of the Repeal Act. However, there will be no ore as to cost.

5- uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e] 1999 esa fofgr

izkfo/kku rFkk rRdze es fuxZr 'kklukns'k fnukad 09-02-2000] 'kklukns'k fnukad

09-08-2000 ,oa 'kklukns'k fnukad 24-01-2001 Lor% Li"V gSA fo'ks"k vuqefr

;kfpdk la[;k&12960@2008 mRrj izns'k jkT; cuke gjhjke rFkk mlls Dyc

vU; fo'ks"k vuqefr ;kfpdkvks es ikfjr ek0 mPpre U;k;ky; ds fu.kZ; fnukad

11-03-2013 esa mfYyf[kr fl)kUr@vkns'k Hkh Lor% Li"V gSA

6- d`i;k uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e] 1999 rFkk

mDr 'kklukns'k fnukad 09-02-2000 ] 'kkluns'k fnukad 09-08-2000 ,oa 'kklukns'k

fnukad 24-01-2001 es fofgr O;oLFkk] fo'ks"k vuqefr ;kfpdk

la[;k&12960@2008 mRrj izns'k jkT; cuke gjhjke es ikfjr ek0 mPpre

U;k;ky; ds fu.kZ; fnukad 11-03-2013 esa mfYyf[kr fl)kUrks@vkns'kksa ds vkyksd

es yfEcr izdj.kksa es Legal ingredients ns[krs gq, vko';d dk;Zokgh dh

tk;A

Hkonh;

g0 viBuh;

¼iu/kkjh ;kno½

lfpo

la[;k ,oa fnukad rnSoA

izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"krA

1- funs'kd uxj Hkwfe lhekjksi.k ] m0 iz0 tokgj Hkou& y[kuÅ

2- l{ke izkf/kdkjh uxj Hkwfe lhekjksi.k xksj[kiqj] okjk.klh] bykgkckn]

y[kuÅ] dkuiqj] vkxjk] esjB] eqjknkckn] vyhsx<] cjsyh] lgkjuiqjA

3- eq[; LFkk;h vf/koDrk ek0 mPp U;k;ky;] bykgkckn

4- xkMZ QkbZyA

vkKk ls

¼dYyw izlkn f}osnh½

mi lfpoA”

In the present case the documents annexed by the State Government

and relied upon by them to show the possession, do not in any manner

demonstrate that the possession was, peacefully and voluntarily, given

by the land owner as the possession memo does not bear any signature

of any of the land owner or even does not record that the possession

was voluntarily given to the State authority. Thus, on two grounds i.e.

possession not taken by the person authorized under the Act and the

possession not given in accordance with Section 10 (5) of the Act, the

possession in the present case as taken by the State is held to be

wholly illegal.

The next case relied upon by the counsel for the petitioners is State of

Uttar Pradesh and another Vs. Nek Singh (Supra), this Court

extensively considered all the judgments and held as under :-

“9. Otherwise also, the statutory benefit of the Repealing Act is also

available to the landholder-respondent in the fact-situation of the

matter, as the taking of the “possession” in the present case was

neither de jure nor de facto. The term “possession” as per sections 3

and 4 of the Repealing Act and section 10(6) of the U.L.C.R Act

means and implies the lawful “possession” after “due compliance of

the statutory provisions”. In State of U.P v. Boon Udhyog (P) Ltd. .

1999 4 AWC 3324 para 16, a Division Bench of this Court has held

that where possession has been taken, its legality is to be decided on

merits. Similarly, another Division Bench of this Court in State of U.P

v. Hari Ram . 2005 60 ALR 535., has held that “in case possession is

purported to be taken under section 10(6) of the Act, still Court is

required to examine whether ‘taking of such possession’ is valid or

invalidated on any of the considerations in law. If Court finds that one

or more grounds exist which show that the process of possession,

though claimed under section 10(5) or 10(6) of the Act is unlawful or

vitiated in law, then such possession will have no reorganization in

law and it will have to be ignored and treated as of no legal

consequence”. On examination of the facts on record, it is crystal

clear that the possession allegedly taken on 23.1.1986 was unlawful

for plurality of reasons which are—Firstly, the possession allegedly

taken on 23.1.1986 was pursuant to the CA's order dated 19.12.1985

under section 10(5) which was addressed to deceased Dhan Singh

and, therefore, it was nullity and non est factum having no legal

consequence and the possession taken on the basis was also void.

Secondly, as per the Government Order dated 9.2.1977 issued by the

State Government (filed with Supplementary Counter Affidavit and

taken on record), the Collector was alone authorised under section

10(6) of the U.L.C.R Act to take possession on behalf of the State

Government, but in the instant case, the possession was taken by the

Tehsil officials and not by the Collector or the Additional Collector or

by the Competent Authority himself. The Collector could not have

delegated his authority to anyone else as a delegate could not have

further delegated in view of the maxim—Delegatus non potest

delegare. As such, the taking of possession by the Tehsil Officials was

per se illegal being not as per the authorisation dated 9.2.1977 and,

therefore, had no consequences. Thirdly, the possession was taken on

23.1.1986, while the alleged affixation of the order dated 19.12.1985

under section 10(5) of the U.L.C.R Act was made on 9.1.1986 by the

process-server and, as such, the possession was taken on 23.1.1986

only after the expiry of 14 days instead of the statutory period of 30

days as enjoined in section 10(5) of the U.L.C.R Act. Fourthly, the

possession certificate (Annexure-7 to the WP) did not mention the

factum of ‘taking’ possession, and it merely stated the factum of the

transfer of possession to the State Government. Needless to say that

unless the possession was first ‘taken’, the same could not have been

‘transferred’ to the State Government. The plain reading of the

possession certificate does not show taking of possession from the

occupants and, therefore, it cannot be termed as a possession

certificate under section 10(6). Fifthly, the stand of the State

Government before the Appellate Authority was that the State

Government has “taken over only symbolic possession over the plots

in question and the same cannot be treated physical possession”. If it

be so, then also, it would not be deemed to be “possession” within the

meaning of section 10(6) of the U.L.C.R Act which meant actual and

physical possession and not symbolic one.”

Counsel for the petitioners also placed reliance upon the judgment of

this Court in the case of Ram Chandra Pandey Vs. State of U.P. and

others 2010 (82) ALR 136 wherein this Court considered the scope of

directions issued by the State Government under Section 35 of the

1976 Act, held as under :-

"In the background of the facts of this case and the submissions made

by the learned counsel for the parties as well as on perusal of the

record produced by the learned Standing Counsel, especially the

document by which possession of the land is said to have been taken

from the grand father of the petitioner late, Dhani Ram, we are not

satisfied that actual physical possession of the plots in question was

ever taken by the State Government. From the record, we find that the

memo of possession prepared in the present case is nothing but a mere

noting of three officials of the State Government made on 2.4.1992,

which is also not on the proper format and appears to have been

prepared by the State officials in their office, and as such no

authenticity can be attached to the same. On such memorandum, there

is no signature of the grand father of the petitioner (late Dhani Ram)

or any independent person to show that actual physical possession

had been delivered to the State Government. More so, the name of late

Dhani Ram continued in the revenue record till his death in the year

1995 and thereafter the name of the petitioner was admittedly

recorded in the Khasra and Khatauni in the year 1996, which

continued so till the passing of the ex-parte order in 2004, where after

also the land revenue was being accepted from the petitioner."

Counsel for the petitioners has relied upon the observations of the

Supreme Court of India, passed in Special Leave to Appeal (C)

No.38922 of 2013, in the case of State of U.P. and another Vs. Vinod

Kumar Tripathi and others, held as under :-

“Heard.

From perusal of notice issued under section 10(5) of Urban Land

(Ceiling and Regulation) Act, 1976 (“ULC Act” for short), from the

original record, the competent authority has authorised the District

Magistrate to take possession of the land declared as surplus under

Section 10(3) Notification, vide notification no. 324/I-L-27-U.C.77

dated 9.2.1977, which was published on 12.3.1977. As could be seen

from the possession certificate under Section 10(6) of the repealed

ULC Act, District Magistrate, who has been authorised possession of

the land in question was not taken. The Tehsildar was given liberty to

make the mutation proceedings and make entry in the revenue records

after taking over possession as provided under Section 10(6) of ULC

Act, and inform the same to the competent authority. The possession of

the land in question is not taken from the declarant or his legal

representatives in accordance with Section 10(6) of the ULC Act, from

the original record it is noted that, there is no signature of taking over

possession from the declarant or the legal representatives, more so,

the competent authority has no power to nominate officer on behalf of

the State Government to take possession as provided under Section

10(6) of the ULC Act, therefore, we are not inclined to interfere with

the impugned order.

The special leave petition is dismissed accordingly.

Heard.

Delay condoned.

From the perusal of the original record with regard to notice, it was

issued on 28.10.1993 under Section 10(5) of the Urban Land (Ceiling

and Regulation) Act, 1976 (Now repealed) much after the purported

possession has been taken is shown as on 30.12.1988, therefore, in

fact, and in law no possession is taken by either the competent

authority or any authorised person in terms of Section 10(6) of the

ULC Act.

In view of the above, we are not inclined to interfere with the order

passed by the High Court.

The special leave petition is dismissed. Consequently, the pending

applications are disposed of.

Heard.

Our attention was drawn to section 10(5) notice and section 10(6) of

the Urban Land (Ceiling and regulation) Act, 1976 for taking over

possession. From the original record, it is brought to our notice that

under Section 10(5) of the Act, the authorisation was given by the

competent authority to the District Magistrate to take over possession,

the competent authority has no power to nominate officer on behalf of

the State Government to take possession as provided under Section

10(5) of the ULC Act, therefore, the possession is not taken in terms of

Section 10(6) of the Act.

In view of the above, we are not inclined to interfere with the order of

the High Court.

The special leave petition is dismissed accordingly.

Heard.

As could be seen from the original record, possession of the land in

question is taken neither by the competent authority or his authorised

his representative by following the procedure as laid down under

Section 10(5) and 10(6) of the Urban Land (Ceiling and Regulation)

Act, 1976 (now repealed), therefore, the impugned order cannot be

interfered, hence, the special leave petition is liable to be dismissed

and is hereby dismissed accordingly.”

Counsel for the petitioners has placed reliance in the case of Mohd.

Islam and 3 others Vs. State of U.P. and 2 others (Writ C No.15864

of 2015) wherein in a similar circumstances, this Court has held 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

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 tenure-holder 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.”

The next judgment relied upon by the counsel for the petitioners is

Ram Singh and others Vs. State of U.P. and others 2013 (120) RD

389, wherein this Court has held as under:-

“36. It is a matter of common notice and also matter of record

that large number of cases which earlier came before this court

and were decided and even at present also on getting the

record it is clear that proceedings are either without any notice

on the land holders or after the notice to the dead person or

after the notice but not the proper service stating the name of

the witnesses and their details and in most of the cases

proceedings did not progress after the notice under Section

10(5) of the Urban Land (Ceiling and Regulation) Act 1976 and

if there is notice under Section 10(6) of the Act it again do not

contain proper service with the name/identity of the witnesses.

For taking Dakhal document demonstrates the authority signing

the paper is not competent. The emphasis on the word 'actual

physical possession' has some special meaning and thus that

rules out the paper possession and it is for this reason it has

been said that mere entry will not reflect taking of actual

physical possession.

37. We can safely assume that nobody is going to leave the

possession just on mere asking by a notice under Section 10(5)

of the Act. It is highly improbable to accept and believe that a

notice under Section 10(5) of the Act is given and the person

proceeds to surrender and deliver the possession to the State

or to a person duly authorized.

38. The Law Courts has always expected the strict proof of

taking possession under the Rural Ceiling also having found it

to be a confiscatry law. The land owned by any person might be

coming down from the time of their ancestors will be so easily

and conveniently surrendered as is being stated by the State in

the counter affidavit is a matter of surprise. The factum of actual

possession which has a vital role on the right of Landholder

certainly has to be actual physical possession and that too in

accordance with law and therefore that permits a big room of

inquiry in all respect and the court having not found any positive

material and any overt act to show dispossession of the

landholder has to lean in their favour and thus in view of the

repeal of the Urban Land (Ceiling and Regulation) Act, 1976 a

person having continued in possession will continue with his

rights.

39. The court feels that after imposition of ceiling on

agricultural land by the State Government and its success in

getting the land and its distribution to the weaker class the

demand for imposing of ceiling on urban properties was also felt

with the growing population and for orderly development of the

urban areas and also to take measures to regulate social

control over the resources of urban land besides other allied

purposes. After lapse of reasonable time for various kind of

pressures and we do not exactly know the object but primarily

for the reasons stated in the Repeal Act the Urban Land

(Ceiling and Regulation) Repeal Act, 1999 came into force.

40. It is to be observed that all the decided cases on the point

have interpreted the possession as 'actual physical

possession' and not only paper/symbolic. There being no

specific provision for taking over possession of the surplus land

direction was issued named as 'U.P. Urban Land Ceiling (Taking

of Possession, Payment of Amount and Allied Matters)

Directions, 1983. For payment of compensation and procedure

for taking possession of the vacant land and its manner has

been dealt in great detail in the decision given by this court in

the case of Ram Chandra Pandey (Supra).

41. If we read the relevant provisions of the U.P. Urban Land

(Ceiling and Regulation) Act, 1976 and U.P. Urban Land

(Ceiling and Regulation) Repeal Act 1999 then it will be clear

that mere vesting of the land declared surplus under the Act

without taking de facto possession is of no consequence and

land holder shall be entitled to the benefit of Repeal Act. The

effect of the Repeal Act is further clear that if the land owner

remains in physical possession then irrespective of his land

being declared surplus and/or entry being made in favour of the

State in Revenue Records, he will not be divested of his rights.

Even if compensation is received that also that will not dis-

entitle him to claim the benefit if compensation is refunded,

provided he is in actual physical possession. Payment of

compensation has no co-relation with the taking of actual

physical possession as with the vesting of land compensation

becomes payable which can be paid without taking actual

physical possession.

42. It is not to be emphasised again and again that irrespective

of vesting of land the State or the competent authority

authorizes by the State is to establish taking of actual physical

possession from the landholders, after following due procedure

and therefore, in all the cases there has to be a verification

about continuance of actual physical possession as claimed by

the landholder or its taking over as claimed by the State as

provided in law and it is accordingly rights of the parties are to

be governed.”

Counsel for the respondents on the other hand, has vehemently relied

upon the judgment of the Supreme Court in the case of State of Assam

Vs. Bhaskar Jyoti Sarma and others (2015) 5 Supreme Court Cases

321. The said case arose from the ceiling proceeding initiated in the

State of Assam. The Supreme Court was confronted with a case where

the ceiling authorities had taken possession which was not resisted by

the land holder. It was specifically argued before the Supreme Court in

the said case, as under:-

"The case of the appellant is that actual physical possession of the

land was taken over on 7th December, 1991 no matter unilaterally

and without notice to the erstwhile land owner. That assertion is

stoutly denied by the respondents giving rise to seriously disputed

question of fact which may not be amenable to a satisfactory

determination by the High Court in exercise of its writ jurisdiction.

But assuming that any such determination is possible even in

proceedings under Article 226 of the constitution, what needs

examination is whether the failure of the Government or the

authorised officer or the competent authority to issue a notice to the

land owners in terms of Section 10(5) would by itself mean that such

dispossession is no dispossession in the eye of law and hence

insufficient to attract Section 3 of the Repeal Act. Our answer to that

question is in the negative."

A distinct feature in the State of Assam and State of Uttar Pradesh is

that specific directions have been issued in the State of Uttar Pradesh

under Section 35 of the Urban Ceiling Act providing for the manner of

taking possession and conferring the power only on the Collector to

take possession. Thus, in the State of Uttar Pradesh, the Collector was

delegated by the State Government to take possession in terms of an

order passed under Section 35 of the Act whereas there was no such

directions issued in the State of Assam. Thus, the question of

"Delegatees non potest delegare" i.e. the principles that a delegatee

cannot further delegate was neither raised before the Supreme Court

nor was it decided in the said judgment. In that background, the

Supreme Court held as under :-

"In the case at hand if the appellant's version regarding dispossession

of the erstwhile owner in December 1991 is correct, the fact that such

dispossession was without a notice under Section 10(5) will be of no

consequence and would not vitiate or obliterate the act of taking

possession for the purposes of Section 3 of the Repeal Act. That is

because Bhabadeb Sarma-erstwhile owner had not made any

grievance based on breach of Section 10(5) at any stage during his

lifetime implying thereby that he had waived his right to do so."

The Supreme Court also in the said case recorded that the question of

dispossession of the owner or the transferee was never agitated or

determined by the High Court in the writ petition filed by the

transferee. In this context, the Supreme Court noted as under:-

"We cannot, however, ignore the fact that the question of dispossession

of the owner or the transferee was never agitated or determined by the

High Court in the writ petition filed by the transferee. We could

appreciate the argument if the issue regarding dispossession had been

raised and determined by the Courts in the previous litigation. That

was, however, not so, apparently, because the question of

dispossession was not relevant in the proceedings initiated by the

transferees who were challenging the vesting order on the ground of

their having purchased the surplus land from the owner. That attempt

failed as the Court found the sale in their favour to be void. The

question of dispossession relevant to Section 3 of the Repeal Act thus

never arose for consideration in those proceedings. It will, therefore,

be much too farfetched an inference to provide a sound basis for

either the High Court or for us to hold that dismissal of the writ

petition filed by the purchasers in the above circumstances should

itself support a finding that possession had indeed been taken over.

Having said that we must hasten to add that even the Division Bench

has while reversing the view taken by the single bench not recorded

any specific finding to the effect that possession had actually

continued with the erstwhile owner even after the vesting of the land

under Section 10(3) and the proceedings dated 7th December, 1991."

In the said case, the Supreme Court also recorded as under:-

"19. In support of the contention that the respondents are even today

in actual physical possession of the land in question reliance is placed

upon certain electricity bills and bills paid for the telephone

connection that stood in the name of one Mr. Sanatan Baishya. It was

contended that said Mr. Sanatan Baishya was none other than the

caretaker of the property of the respondents. There is, however,

nothing on record to substantiate that assertion. The telephone bills

and electricity bills also relate to the period from 2001 onwards only.

There is nothing on record before us nor was anything placed before

the High Court to suggest that between 7th December, 1991 till the

date the land in question was allotted to GMDA in December, 2003

the owner or his legal heirs after his demise had continued to be in

possession. All that we have is rival claims of the parties based on

affidavits in support thereof. We repeatedly asked learned counsel for

the parties whether they can, upon remand on the analogy of the

decision in the case of Gyanaba Dilavarsinh Jadega (supra), adduce

any documentary evidence that would enable the High Court to record

a finding in regard to actual possession. They were unable to point out

or refer to any such evidence. That being so the question whether

actual physical possession was taken over remains a seriously

disputed question of fact which is not amenable to a satisfactory

determination by the High Court in proceedings under Article 226 of

the Constitution no matter the High Court may in its discretion in

certain situations upon such determination. Remand to the High Court

to have a finding on the question of dispossession, therefore, does not

appear to us to be a viable solution."

The Supreme Court in the case of Hari Ram (Supra) had specifically

dealt with the provisions of the Ceiling Act and the orders passed

under Section 35 of the Act and had also specifically held that it is

only the Collector alone who is delegated the power by the State

Government to take possession without there being any power on the

Collector to further sub-delegate. There being no such provision/order

in the State of Assam, we are afraid the ratio relied upon in the case of

State of Assam (Supra) has no applicability to the facts of the case

relating to State of Uttar Pradesh.

The next judgment relied upon by the standing counsel is in the case

of Jagdish Chandra Vs. State of U.P. & 2 others, passed in Writ C

No.31059 of 2015 wherein this Court relying upon the judgment in the

case of State of Assam (supra) held as under:-

“25. In view of above discussion, we do not find any manifest

error in decision taken by District Magistrate/Collector that since

actual physical possession of land in dispute stood transferred

to KDA before enforcement of Repeal Act, 1999 and petitioner

could place no material to show that actual physical possession

was taken by State or KDA, sometime after enforcement of

Repeal Act, 1999, the petitioner is not entitled to claim any

benefit under Repeal Act, 1999. The view taken by District

Magistrate/Collector cannot be said to be erroneous in any

manner and warrants no interference. There is no error

apparent on the face of record in the order passed by District

Magistrate/Collector warranting any interference.”

The facts being different in the present case, it can be safely said that

the above judgment has no applicability to the case in hand.

The High Court also followed the judgment of another Division Bench

in the case of Raisuddin and others Vs. State of U.P. and others,

passed in Writ C No.33071 of 2015 wherein the High Court has

recorded as under:-

"20. Possession if taken, even if there is some defect with

regard to notice under Section 10(5) or 10(6) of Act, 1976 would

not attract Section 3 of Repeal Act, 1999 is the view taken by

Division Bench of this Court in Shiv Ram Singh Vs. State of U.P.

and others, 2015(5) AWC 4918 and Polu and others Vs. State

of U.P. and another (Writ Petition No. 20035 of 2013), decided

on 03.11.2016. In Shiv Ram Singh (supra) we find that original

record produced before Division Bench also shows compliance

of directions of 1983 and this is evident from para 10 of

judgment which reads as under:

"10. In the present case, the learned Chief Standing Counsel

has produced the original file for the perusal of the Court. The

material before the Court indicates that the Directions of

1983 were duly observed. Direction 3(2) envisages that an

order in Form ULC-II has to be sent to each land holder as

prescribed under Section 10(5) and the date of issue and

service of the order is to be entered in Column 8 of Form ULC-I.

This procedure has been complied and we may only note that a

copy of the original ULC-II register has been produced for the

perusal of the Court. Similarly, direction 3(3) contemplates that

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, entries will be made in a register in Form

ULC-III. The original Form ULC-III has similarly been produced

before the Court. Entries have been made in compliance with

direction 3 both in ULC-II and ULC-III registers. In the present

case, it is also clear from the record that on 14 February 1992,

a communication was addressed by the Competent Authority to

the Tehsildar drawing attention to an earlier letter dated 25

February 1987 and requesting that possession of the land be

taken over. A copy of the letter dated 25 February 1987 forms

part of the original record which was produced by the learned

Chief Standing Counsel. On 25 June 1993, possession of the

land was taken over. The possession receipt has been duly

executed by the Naib Tehsildar and by the Kanoongo. In this

view of the matter, we are unable to accept the contention of

the petitioner that possession of the land was not taken over

prior to the date of the Repeal Act."

21. Court after having recorded finding that possession in fact

was taken prior to 18.03.1999, denied benefit of Section 3 of

Repeal Act, 1999.”

The facts of the case in hand are entirely different from the facts of the

case quoted above and as such the ratio cannot be applied to the

present case.

Based upon the above judgments, the standing counsel has strenuously

argued that the writ petition deserves to be dismissed and this Court

should follow the judgment in the case of State of Assam and as

applied and followed by this Court in the case of Jagdish Chandra

Vs. State of Uttar Pradesh (Supra) and Raisuddin and others Vs.

State of U.P. and others (supra).

From the arguments made at the bar and the judgments relied upon, it

is clear that two lines of judgments have been passed; First following

the case of State of Uttar Pradesh Vs. Hari Ram (Supra) and Second

set following the judgment of the Supreme Court in the case of State

of Assam Vs. Bhaskar Jyoti Sarma and others (supra). The said two

judgments of Hari Ram and State of Assam are based upon the facts of

the case pertaining to the cases arising from the State of Uttar Pradesh

and those arising from the State of Assam. A clear distinction in the

said cases is that in the case of State of Uttar Pradesh specific order

has been passed in terms of the powers conferred under Section 35 of

the Act delegating the function of taking possession upon the Collector

alone without there being any further power of sub-delegation whereas

there is no such order/instruction in the State of Assam.