1

A.F.R.

RESERVED

Court No. - 21

Case :- WRIT - C No. - 13520 of 2018

Petitioner :- Pal Singh And 4 Others

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

Counsel for Petitioner :- Madhusudan Dikshit

Counsel for Respondent :- C.S.C.

Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Piyush Agrawal,J.

(Delivered by Hon'ble Piyush Agrawal, J.)

By means of the present petition, the petitioners seek a writ

of mandamus declaring the entire proceedings, initiated against

the petitioners under the Urban Land (Ceiling & Regulation) Act,

1976 as abated in view of the Urban Land (Ceiling & Regulation)

Repeal Act, 1999.

The brief facts of the case on record are that the petitioners

claim that an area of 8041.08 square meters of Khasra Nos. 271

Mi, 272 Mi, 277 Mi, 289 Mi, 279 Mi, 290 Mi, 291 Mi, 392 Mi, 330

Mi and 331 Mi situated in Village - Shekhpura Kadeem, District

Saharanpur and Khasra No. 61 situated in Village – Chakpuragpur

be exempted from the ceiling proceedings as the petitioners claim

to be the owners of the said land.

The proceedings under Urban Land (Ceiling & Regulation)

Act, 1976 (hereinafter referred to as, 'the Act of 1976') were

initiated against the petitioner's predecessor. Thereafter, the

father of the petitioners filed statement under section 6(1) of the

Act of 1976. As the land was agricultural land and does not come

under section 2(o) of the Act of 1976, i.e., the 'vacant land', the

proceedings of ceiling were dropped on 29.09.1986. Thereafter,

again the ceiling proceedings were initiated against the father of

the petitioners. On 29.09.1987, the Mahayojana (Master Plan)

was introduced in Saharanpur Nagar Basti and on the basis of the

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old returns, draft statement under section 8(3) of the Act of 1976

was issued on 15.03.1991, in which the total land/building of the

tenure holder measuring 11,397.23 square meters and thereafter,

a total area of 8041.08 square meters from Khasra Nos. 271 Mi,

272 Mi, 277 Mi, 289 Mi, 279 Mi, 290 Mi, 291 Mi, 392 Mi, 330 Mi

and 331 Mi situated in Village - Shekhpura Kadeem, District

Saharanpur and Khasra No. 61 situated in Village – Chakpuragpur

was proposed to be declared surplus. It is averred that by ex

parte order dated 12.06.1998 under section 8(4) of the Act, the

land in question was declared surplus.

Thereafter, notification under section 10(1) of the Act of

1976 and notification under section 10(3) of the Act of 1976 were

sent for publication in the official Gazette on 26.03.1993 and

21.08.1993 respectively. After the publication of the notification,

notice under section 10(5) of the Act of 1976 was issued to the

tenure holder on 27.01.1994, calling upon the tenure holder to

voluntarily surrender their surplus vacant land of 8246.00 square

meters. This notice is alleged to be served upon the tenure holders

personally by process server.

On 29.03.1998, the State claims that Parwana Amal

Daramad was issued and the name of the State Government was

recorded in the revenue records pursuant to the notice under

section 10(5) of the Act of 1976. Thereafter, the surplus land was

handed over to the Saharanpur Development Authority on

19.02.2002 and since then, the land in question is in the custody

of Saharanpur Development Authority.

It is averred that the petitioners are still in physical

possession of the land in question, which has been declared

surplus. It is further averred that no notice under section 10(5) of

the Act of 1976 was issued to the petitioners and the petitioners

have never signed any document regarding delivery of possession

and in view of section 10(6) of the Act of 1976, no forcible

possession was taken by the State Government from the

petitioners and actual tenure holder, i.e., the father of the

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petitioners. It is further averred that the petitioners have not

received any compensation of the land in dispute which has been

declared surplus. It is further averred that the State Government

is alleged to have transferred the land in question in favour of

Saharanpur Development Authority on 19.02.2002, much after the

coming into force of the Urban Land (Ceiling & Regulation) Repeal

Act, 1999 (hereinafter referred to as, 'the Act of 1999'). It is clear

from the record that the land is agricultural land which shows that

at the time of handing over the possession to the Saharanpur

Development Authority, the land was not of urban land, but it was

agricultural land. It is further averred that in terms of section 2(o)

of the Act of 1976, the urban land is defined which does not

include the land which is mainly used for the purposes of

agriculture. As per section 2(q) of the Act of 1976, the “vacant

land” is defined as the land not being the land mainly for the

purposes of agriculture.

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

respondents, in which it is contended that due process of law as

prescribed under the relevant Act has been followed and only

thereafter, the physical possession of the land has been taken in

an absolutely legal manner. It has been further averred in the

counter affidavit that after publication of notification in the

Gazette under sections 10(1) and 10(3) of the Act of 1976, the

land vested in the State Government. Thereafter, notice under

section 10(5) of the Act was issued on 17.01.1994, which was duly

served upon the tenure holder and the possession of the surplus

land was taken on 27.03.1998 after adopting all procedures as per

the law. Thereafter, the aforesaid surplus land was handed over to

the Saharanpur Development Authority on 19.02.2002 for

implementation of the Master Plan. In support of the submission,

the possession letter dated 27.03.1998 has been annexed along

with the counter affidavit to justify the taking over the possession

much before the enforcement of the repeal Act of 1999.

We have heard Shri Madhusudan Dikshit, learned counsel for

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the petitioners and learned standing counsel for the State –

respondents and perused the material on record.

Learned counsel for the petitioners submits that the State

Government has failed to establish that actual possession has

been taken in terms of sections 10(5) and 10(6) of the Act, 1976.

It is further submitted that the tenure holder has not handed over

the possession of the declared surplus land to the Collector in

terms of the notice under section 10(5) of the Act, which is

evident from the material on record. He further submits that no

proceedings, whatsoever, have been initiated against the tenure

holder in terms of section 10(6) of the Act of 1976 as no pleading

has been taken by the answering respondents in their counter

affidavit that forcible possession has been taken over under

section 10(6) of the Act of 1976. He further submits that in view

of the said fact, the entire proceedings initiated against the

petitioners stood abated in terms of section 3 of the Act of 1999

and the expression “deemed to have been acquired” or “deemed

to have been vested” are not applicable in view of the aforesaid

fact as the State has failed to establish that the actual possession

has been taken over in view of sections 10(5) and 10(6) of the

Act.

Learned counsel for the petitioner further submits that it is

not the case of the respondents that the tenure holder has

voluntarily surrendered the possession of the land in question.

Thus, it was imperative that the possession should have been

taken in terms of section 10(6) of the Act of 1976 and there is no

pleading in the affidavit filed by the respondents that forcible

possession was taken from the tenure holder and the land in

question has been transferred in favour of the Saharanpur

Development Authority on 19.02.2002 (as mentioned in paragraph

no. 3 of the counter affidavit). It is further argued by the learned

counsel for the petitioners that the possession memo does not

bear the signatures of the tenure holder at the time of delivery of

possession of the land in question. The said fact itself shows that

the original tenure holder has not given possession voluntarily

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pursuant to the notice under section 10(5) of the Act. Learned

counsel for the petitioners further submits that in view of the fact

that the land in question is still in possession of the petitioners and

no compensation, whatsoever, has been paid, therefore, the

proceedings stood abated when the repeal Act of 1999 came into

force.

Sri Dikshit has placed reliance on the judgments of the

Supreme Court in the case of State of Uttar Pradesh v. Hari Ram

(2013) 4 SCC 280; State of U.P. and another v. Vinod Kumar

Tripathi and others (Special Leave Petition (C) No. 16582 of 2014

decided with Special Leave Petition (C) No. 38922 of 2013, on

19th January, 2016); and the judgments of this Court in State of

U.P. and another v. Nek Singh 2010 LawSuit (All) 3581; Ram

Chandra Pandey v. State of U.P. and others 2010 (82) ALR 136;

Ehsan v. State of U.P. and another (Writ C No. 21009 of 2012,

decided on 08.10.2018); Lalji v. State of U.P. and others 2018

LawSuit (All) 1276: 2018 (5) ADJ 566; and Yasin and others v.

State of U.P. and others 2014 (4) ADJ 305 (DB).

Rebutting the submissions of the learned counsel for the

petitioners, learned standing counsel appearing for the State –

respondents submits that the possession has been taken over by

the State Government in accordance with law on 27.03.1998 and

thereafter, the land in question was transferred in favour of

Saharanpur Development Authority on 19.02.2002 and the stand

taken by the learned counsel for the petitioners is of no

consequence. In his submission, the writ petition lacks merit and

deserves to be dismissed.

Learned Standing Counsel has placed reliance on the

judgments of the Supreme Court in the cases of State of Assam v.

Bhaskar Jyoti Sarma and others (2015) 5 SCC 321 and State of

U.P. and others v. Surendra Pratap and others AIR 2016 SC 2712,

and judgment of this Court in Shiv Ram Singh v. State of U.P. and

others 2015 (5) AWC 4918.

We have summoned the original record and we have perused

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the same. We find that the record no where indicates as to how

possession was taken and what is the name of the witness in

whose presence such possession was taken. There is no name

indicated in the counter affidavit filed by the State. The signature

of the tenure holder is also not there.

At this stage, before adverting to the submissions raised on

behalf of the parties, it is quite relevant to reproduce the relevant

provisions of the Act for proper appreciation of the controversy

involved in the matter.

Sections 2(o), 2(q) and sub-sections (5) and (6) of Section

10 of the Act, 1976 are reproduced hereunder:

"2(o) "urban land" means,--

(i) any land situated within the limits of an urban agglomeration and

referred to as such in the master plan; or

(ii) in a case where there is no master plan, or where the master plan

does not refer to any land as urban land, any land within the limits of an

urban agglomeration and situated in any area included within the local

limits of a municipality (by whatever name called), a notified area

committee, a town area committee, a city and town committee, a small

town committee, a cantonment board or a panchayat,

but does not include any such land which is mainly used for the purpose

of agriculture.

Explanation.--For the purpose of this clause and clause (q),--

(A) "agriculture" includes horticulture, but does not include--

(I) raising of grass,

(ii) dairy farming,

(iii) poultry farming,

(iv) breeding of live-stock, and

(v) such cultivation, or the growing of such plant, as may be prescribed;

(B) land shall not be deemed to be used mainly for the purpose of

agriculture, if such land is not entered in the revenue or land records

before the appointed day as for the purpose of agriculture:

Provided that where on any land which is entered in the revenue or land

records before the appointed day as for the purpose of agriculture, there

is a building which is not in the nature of a farm-house, then, so much of

the extent of such land as is occupied by the building shall not be

deemed to be used mainly for the purpose of agriculture:

Provided further that if any question arises whether any building is in the

nature of a farm-house, such question shall be referred to the State

Government and the decision of the State Government thereon shall be

final;

(C) Notwithstanding anything contained in clause

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(B) of this Explanation, land shall not be deemed to be mainly used for

the purpose of agriculture if the land has been specified in the master

plan for a purpose other than agriculture;"

"2(q) "vacant land" means land, not being land mainly used for the

purpose of agriculture, in an urban agglomeration, but does not include--

(i) land on which construction of a building is not permissible under the

building regulations in force in the area in which such land is situated;

(ii) in an area where there are building regulations, the land occupied by

any building which has been constructed before, or is being constructed

on, the appointed day with the approval of the appropriate authority and

the land appurtenant to such building; and

(iii) in an area where there are no building regulations, the land occupied

by any building which has been constructed before, or is being

constructed on, the appointed day and the land appurtenant to such

building:

Provided that where any person ordinarily keeps his cattle, other than for

the purpose of dairy farming or for the purpose of breeding of live-stock,

on any land situated in a village within an urban agglomeration

(described as a village in the revenue records), then, so much extent of

the land as has been ordinarily used for the keeping of such cattle

immediately before the appointed day shall not be deemed to be vacant

land for the purposes of this clause."

"10(5) Where any vacant land is vested in the State Government under

sub-section (3), the competent authority may, by notice in writing, order

any person who may be in possession of it to surrender or deliver

possession thereof to the State Government or to any person duly

authorised by the State Government in this behalf within thirty days of

the service of the notice."

"10(6) If any person refuses or fails to comply with an order made

under sub-section (5), the competent authority may take possession of

the vacant land or cause it to be given to the concerned State

Government or to any person duly authorised by such State Government

in this behalf and may for that purpose use such force as may be

necessary.

Explanation.--In this section, in sub-section (1) of section 11 and in

sections 14 and 23, "State Government", in relation to--

(a) any vacant land owned by the Central Government, means the

Central Government;

(b) any vacant land owned by any State Government and situated in the

Union territory or within the local limits of a cantonment declared as such

under section 3 of the Cantonments Act, 1924 (2 of 1924), means that

State Government."

Section 2(o) of the Act, 1976 defines "urban land" and

Section 2(q) defines "vacant land". Section 6 of the Act, 1976

provides that owner of the land shall submit a statement giving

detail of the vacant land. Section 8(1) enjoins that the competent

authority shall get a survey of the land conducted and on the basis

of the said survey a draft statement under sub-section (3) of

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Section 8 of the Act, 1976 was required to be served upon the

land owner calling for objection to the said statement within thirty

days and the order is passed under sub-section (4) of Section 8 of

the Act, 1976 and later a notification is issued under sub-section

(1) of Section 10 for publication in the Gazette giving particulars of

the vacant land. Thereafter another notice is published stating that

the land shall be deemed to have been vested on the Government

free from all encumbrances. Thereafter a notice under sub-section

(5) of Section 10 of the Act, 1976 is issued calling upon the land

owner to hand over possession of the land declared surplus. If the

land owner fails to handover the possession voluntarily in response

to the aforementioned notice, sub-section (6) of Section 10 of the

Act, 1976 confers a power upon the competent authority to take

forceful possession.

In the year 1999 the Parliament enacted the Urban Land

(Ceiling and Regulation) Repeal Act, 1999 (for short Act 15 of

1999). The said Act was adopted by the State of U.P. also by a

notification dated 18.03.1999. It is apposite to reproduce Sections

3 and 4 of the Repeal Act.

"3. Saving.-- (1) The repeal of the principal Act shall not affect--

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

which has been taken over by 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;

(c) any payment made to the State Government as a condition for

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.

4. Abatement of legal proceedings.— All proceedings relating to

any order made or purported to be made under the principal Act pending

immediately before the commencement of this Act, before any court,

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tribunal or other authority shall abate:

Provided that this section shall not apply to the proceedings relating to

sections 11,12,13 and 14 of the principal Act in so far as such

proceedings are relatable to the land, possession of which has been

taken over by the State Government or any person duly authorised by

the State Government in this behalf or by the competent authority.”

In exercise of the powers under Section 35 of the Act, 1976

the State Government issued the Directions, 1983 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). The

direction no.3 is relevant for our purpose which is extracted below:

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

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

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

possess

-ion

Case

Num

-ber

Date

of

Notifi

-

cation

under

Secti-

on

10(3)

Land

to be

acqui-

red

village

Moha-

li

Date

of

taking

over

posse-

ssion

RemarksSignature

of

compete-

nt

authority

Form No. ULC-II

Notice order under Section 10(5)

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

In the court of competent authority

10

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 …..

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

Locatio

n

Khasra No.

identification

Area Remark

s

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

………………………….

..………………………..”

In addition, the State Government has issued a Government

Order on 29.09.2015 pursuant to the judgment of the Supreme

Court in the case of Hari Ram (supra) and to avoid the

unnecessary litigation the State Government has issued detailed

directions in respect of the possession and abatement of the

proceedings. The said Government Order reads as under:

“la[;k & 2228@vkB&6&15&124 ;wlh@13

izs"kd]

iu/kkjh ;kno

11

lfpo]

mRrj izns'k 'kkluA

lsok esa]

ftykf/kdkjh]

xksj[kiqj] okjk.klh] bykgkckn] y[kuÅ] dkuiqj

vkxjk] esjB] eqjknkckn] vyhsx<] cjsyh] lgkjuiqjA

vkokl ,oa 'kgjh fu;kstu vuqHkkx&6

y[kuÅ% fnukad 29 flrEcj 2015

fo"k;& uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e] 1999

rrdze eas fuxZr 'kklukns'k rFkk ek0 mPpre U;k;ky; ds fu.kZ; fnukad 11-

03-2013 ds lEcU/k easaA

&&&&&&

egksn;]

mi;qDZr fo"k; ij eq>s ;g dgus dk funsZ'k gqvk gS fd Hkkjr ljdkj

ds vf/kfu;e la[;k&15@1999 fnukad 18-03-1999 }kjk uxj Hkwfe ¼vf/kdre

lhek ,oa fofu;eu½ vf/kfu;e 1976 dks fujflr djrs gq, uxj Hkwfe

¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e 1999 izk[;kfir fd;k x;k

ftlds dze esa 'kklukns'k la[;k& 502@9& u0 Hkw0&99&21;w0lh0@99]

fnukad 31-03-1999 }kjk mDr fujlu vf/kfu;e dks mRrj izns'k jkT; esa

vaxhd`r fd;k x;kA fujlu vf/kfu;e 1999 dh /kkjk&3 esa ;g izkfo/kku gS

fd ewy vf/kfu;e dk fujlu fuEufyf[kr dks izHkkfor ugha djsxk&

¼1½ ¼d½ /kkjk&10 dh mi/kkjk& ¼3½ ds v/khu ,slh fjDr Hkwfe dk

fufgr gksuk] ftldk dCtk jkT; ljdkj ;k jkT; ljdkj }kjk bl fufeRr

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¼[k½ /kkjk& 20 dh mi/kkjk& ¼1½ ds v/khu NwV nsus laca/kh fdlh

vkns'k ;k mlds v/khu dh x;h fdlh dk;Zokgh dh fdlh U;k;ky; ds

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¼x½ /kkjk& 20 dh mi/kkjk& ¼1½ ds v/khu iznku dh x;h NwV dh 'krZ

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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 esa 'kklukns'k la[;k&777@9u0Hkw0&135 ;w0lh0@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

12

&8 ¼4½ ds vUrxZr tks Hkwfe fjDr ?kksf"kr dh xbZ Fkh vkSj /kkjk&10 ¼3½ ds

vUrxZr jkT; esa 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 esa /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 esa 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 eas fjV

;kfpdk;as ;ksftr dh tk jgh gSA uxj cLrh dk;kZy;ksa }kjk fjV ;kfpdkvksa

eas foHkkxh; i{k le;kUrxZr lk{;kas lfgr izcyrk ls izLrqr u fd;s tkus ds

dkj.k ek0 U;k;ky; }kjk ikfjr vkns'kksa ds dze esa 'kklu dks vleatliw.kZ

fLFkfr dk lkeuk djuk iM+ jgk gSA

4- vcZu lhfyax ds vU; izdj.k esa jkT; ljdkj }kjk ek0 mPppe

U;k;ky; ubZ fnYyh esa 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;sa 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 ;kfpdkvksa 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 gSaA 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 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 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 order as to cost.

13

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

esa fofgr izkfo/kku rFkk rRdze esa 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 ;kfpdkvksa esa ikfjr ek0

mPpre U;k;ky; ds fu.kZ; fnukad 11-03-2013 esa mfYyf[kr

fl)kUr@vkns'k Hkh Lor% Li"V gSaA

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] 'kklukns'k fnukad 09-08-

2000 ,oa 'kklukns'k fnukad 24-01-2001 esa fofgr O;oLFkk] fo'ks"k vuqefr

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

mPpre U;k;ky; ds fu.kZ; fnukad 11-03-2013 esa mfYyf[kr

fl)kUrksa@vkns'kksa ds vkyksd esa 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] m0iz0 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 view of the aforesaid provisions, referred to above, the

question, which emerges to be decided by this Court, is as to

whether in the present set of fact ceiling proceedings shall be

abated in view of the sub-section (2) of section 3 of the Act of

1999.

The Supreme Court in various cases has taken the view that

if at the time of the enforcement of the Repeal Act the possession

has not been taken by the State in terms of sub-section (5) or

sub-section (6) of Section 10 of the Act, 1976, then the

14

proceedings under Section 1976 shall be abated.

The Supreme Court has elaborately considered the scope of

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

and the directions framed by the State Government under Section

35 of the Act, 1976 and the directions framed by the State

Government under U.P. Urban Land Ceiling (Taking of Possession,

Payment of Amount and Allied Matters) Direction 1983 in the case

of State of U.P. v. Hari Ram (2013) 4 SCC 280. The relevant part

of the judgment of the Supreme Court reads thus:

“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.

15

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 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.”

The case of Hari Ram (supra) was followed by the Supreme

Court in the case of Gajanan Kamlya v. Addl. Collector & Comp.

Auth.& Ors. JT 2014 (3) SC 211. The relevant part of the

judgment is extracted below:

“13. We have, therefore, clearly indicated that it was always open to

the authorities to take forcible possession and, in fact, in the notice

issued under Section 10(5) of the ULC Act, it was stated that if the

possession had not been surrendered, possession would be taken by

application of necessary force. For taking forcible possession, certain

procedures had to be followed. Respondents have no case that such

procedures were followed and forcible possession was taken. Further,

there is nothing to show that the Respondents had taken peaceful

possession, nor there is anything to show that the Appellants had given

voluntary possession. Facts would clearly indicate that only de jure

possession had been taken by the Respondents and not de facto

possession before coming into force of the repeal of the Act. Since there

is nothing to show that de facto possession had been taken from the

Appellants prior to the execution of the possession receipt in favour of

16

MRDA, it cannot hold on to the lands in question, which are legally

owned and possessed by the Appellants. Consequently, we are inclined

to allow this appeal and quash the notice dated 17.2.2005 and

subsequent action taken therein in view of the repeal of the ULC Act.

The above reasoning would apply in respect of other appeals as well and

all proceedings initiated against the Appellants, therefore, would stand

quashed."

In Special Leave Petition (C) No.17799 of 2015, which was

also taken up with Special Leave Petition (C) No. 38922 of 2013,

State of U.P. and another v. Vinod Kumar Tripathi and others, vide

order dated 19

th

January, 2016 the Supreme Court has held as

under:

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

question is taken neither by the competent authority or his authorised

representative by following the procedure as laid down under Section

10(5) and Section 10(6) of the Urban Land (Ceiling & 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."

This Court in State of Uttar Pradesh and another v. Nek

Singh 2010 LawSuit (All) 3581, has considered extensively the

procedure which has to be followed for taking possession from the

land holder. The relevant paragraph of the judgment reads 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

17

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."

The similar view has also been expressed by this Court in

Ram Singh v. State of U.P. and others 2013 (7) ADJ 662 (DB). The

relevant part of the judgment is extracted below:

"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.”

In the case of State of U.P. Thru Secy Avas Avam Shahri

Niyojan v. Ruknuddin and others (Writ-C No. 54830 of 2011,

decided on 03.10.2018: LawSuit(All) 3470), the Court has

18

observed as under :

"We having gone through the records and we find that the possession

memo which was prepared on 22/23.03.1998, no where indicates as

to how possession was taken and what is the name of witness in

whose presence such possession was taken. There is no name

indicated in the writ petition filed by the State or even in the rejoinder

affidavit. The name of the Lekhpal in whose presence the alleged

possession is said to have been taken has not been mentioned and

the printed proforma of the possession memo is blank to that effect.

The question as to how the factum of taking actual physical

possession has been established by the State was discussed by a

Division Bench in the case of Mohd. Islam & 3 Others Vs. State of

U.P. in Writ Petition No. 15864 of 2015 decided on 4th December,

2017. The said decision was quoted with approval by a Division Bench

in the case of Rati Ram Vs. State of U.P. & Others 2018 (4) ALJ

338 paragraph no. 8 as follows:-

"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 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

19

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 decisions in the case of Bhaskar Jyoti Sarma (2015) 5

SCC 321 and a Division Bench of this Court in Shiv Ram Singh

2015 (5) AWC 4918 have been relied upon by the learned standing

counsel. Both the judgments have been considered by a Division

Bench of this Court in the case of Mohammad Suaif and another v.

State of U.P. and others

2019 (5) ADJ 764 (DB) and Lalji (supra).

The case of Shiv Ram Singh (supra), the petitioner therein

had challenged the order passed by the District Magistrate holding

that the possession of the land declared surplus has been taken on

25

th

June, 1993, much before Repeal Act came into force. Hence, it

was found that he was not entitled to the benefit of the provisions

of Section 3 (2) of the Repeal Act. In the said case, the notice

under Section 10(1) was issued on 15

th

May, 1985, thereafter on

02

nd

June, 1986 a notification under Section 10(3) was issued and

published in the official gazette, and on 25

th

February, 1987 a

notice under Section 10(5) of the Act, 1976 was issued. The

respondents-State had taken a stand that the possession was

taken on 25

th

June, 1993 pursuant to the notice dated 25

th

February, 1987 i.e. prior to enforcement of the Repeal Act and in

the revenue record the name of the State was mutated. The

petitioner therein had earlier approached the Court by means of

Writ Petition No. 47279 of 2002 claiming that he is still in

possession over the land which was declared surplus, hence after

the Repeal Act the possession cannot be taken over from him. The

20

said writ petition was disposed of by this Court by issuing a

direction upon the District Magistrate to consider his

representation. The District Magistrate, after furnishing

opportunity to the petitioner, by an order dated 10

th

May, 2007

held that the possession has already been taken on 25

th

June,

1983, hence the petitioner would not be entitled to the benefit of

the Repeal Act. The petitioner challenged the said order of the

District Magistrate after two years in July, 2009. In the meantime

in the year 2008 the construction of a Sewage Treatment Plant

(STP) for treating 210 MLD of sewage was commenced. The Jal

Nigam, in whose favour the land was transferred, filed a counter

affidavit in the said writ petition and took the stand that by the

time the writ petition was filed, nearly 65% of the work had been

completed at a cost of Rs.73 crores and the petitioner was fully

aware of the said facts but he did not file the writ petition for two

years. In the light of those peculiar facts the Court did not

interfere. Moreover, the Court has also found that the procedure

for taking possession was followed by the administration. The

District Magistrate after affording opportunity to the petitioner has

recorded a finding that the possession was taken on 25

th

June,

1993.

We have carefully gone through the judgment of Shiv Ram

Singh (supra) and we find that the said judgment is

distinguishable for the reasons recorded above.

In the case of Bhaskar Jyoti Sarma (supra) the land owner

has not denied the fact that possession was taken from him by the

State before enactment of the Repeal Act. In view of the admitted

fact the Supreme Court refused to examine the matter that

whether the possession was taken forcefully or illegally. Once

possession was taken by the State and land vested in the State

Government, the benefit of Section 4 of the Repeal Act shall not be

applicable. Hence, the said case is distinguishable as in the

present case the main issue raised by the petitioners is that they

are still in physical possession and the State has never taken

21

possession from them.

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-3 of the counter affidavit of the State the only averment

made in this regard is that the notice under Section 10(5) of the

Act, 1976 was issued on 27.01.1994. It is also averred therein

that “thereafter the State Government obtained possession on the

surplus vacant land of 8246.00 square meters on 27.03.1998, the

possession was obtained in accordance with law ”. 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.

In addition to above, as discussed above, there is no

material on the record to demonstrate that actual possession was

handed over to the Saharanpur Development Authority except a

Dakhalnama wherein the land has been shown to be agricultural

land. But except bald statement no other material is on the record

to show that any construction has been made. In any view of the

matter, if the possession has not been taken in terms of Sections

10(5) and 10(6) of the Act, 1976, the petitioners are entitled for

the benefit under Sections 3 and 4 of the Repeal Act.

In view of the above, we find that the physical possession of

22

the land in question was never taken from the petitioners. They

are still in physical possession over the land in question. For all

the reasons stated above, we find that the ceiling proceedings

stood lapsed and the petitioners are entitled for the land in

question which has been declared surplus.

With the aforesaid observations and directions, the writ

petition is allowed.

No order as to costs.

Order Date :-13/11/2019

Amit Mishra