1

AFR

Reserved

Case :- WRIT - C No. - 26861 of 2017

Petitioner :- Raju

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

Counsel for Petitioner :- Raj Karan Yadav

Counsel for Respondent :- C.S.C.,Ravi Prakash Pandey,Vivek

Verma

Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Rohit Ranjan Agarwal,J.

(Delivered by Hon.Pradeep Kumar Singh Baghel,J.)

The petitioner has laid challenge in the present writ petition the

proceedings initiated under the provisions of the Urban Land (Ceiling

and Regulation) Act, 1976 (for short Act No. 33 of 1976)

1

on the

ground that the said proceedings stood abated in terms of the Urban

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

1999)

2

and for quashing of the order dated 02.05.2017 passed by the

District Magistrate,Varanasi.

Brief factual matrix may be noted.The petitioner claims that

he is owner of the araji nos. 31/1 area 11 decimal, 86/1 area 26

decimal, 86/4 area 20 decimal, 32/2 area ¾ decimal. He claims to

have half share out of total araji. The said land was within the

municipal limit of the Varanasi and the land was recorded as

agricultural land but being the land within the municipal limit the

provisions of the Act, 1976 were made applicable. The petitioner

submitted ceiling return/statement under sub-section (1) of Section 6

of the Act No.33 of 1976 Act, which was registered as case

no.915/7035/76-77 (State Vs. Lallan) and case no.916/7035/76-77

(State v. Bachau), Village Ranipur, District Varansari. It is stated that

without serving the notice under Section 8(3) of the Act,1976 illegal

order was passed on 27.10.1978 under Section 8(4) of the Act, 1976

1Act, 1976

2Repeal Act

2

and out of 3218.54 square meter land 218.54 square meter land was

declared surplus. Thereafter a notice is said to be issued under sub-

section (5) of Section 10 of the Act, 1976, it bears the date

15.02.1982. The petitioner has averred in paragraph 7 of the writ

petition which has been repeated in other paragraphs also that the

said notice dated 15.02.1982 was never served upon the petitioner

and as such the land holders neither surrendered the land to the State

nor the respondents have ever taken actual possession from the

petitioner.

It is stated that the petitioner is still in physical and cultivatory

possession of the land in question and since the order under sub-

section (4) of Section 8 of the Act, 1976 was never served upon the

land holder, therefore, he could not file any appeal under Section 33

of the Act, 1976.

The petitioner has further averred that no proceeding under

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

been initiated, therefore, after repeal Act came into force respondents

have no right to take possession from the petitioner.

It is worthwhile to mention that in the meantime the Act, 1976

was repealed by the Urban Land (Ceiling and Regulation) Repeal Act,

1999 (Act 15 of 1999). The said Act was adopted by the State of

U.P. whereunder subject to the certain conditions mentioned in the

provisions of the Act the pending proceedings shall be lapsed. That

one of the relief sought in the writ petition is that to declare that the

proceedings initiated under the Act, 1976 is abated in terms of the

Repeal Act.

The petitioner had earlier approached this Court by way of

Writ Petition No.6757 of 2017, Raju v. State of U.P. & 2

Others. The said writ petition was disposed of on 13.02.2017 with a

direction upon the respondent no.2 to consider the fact relating to the

actual physical possession of the plot in question and such an enquiry

be undertaken at first instance by the District Magistrate. In

3

pursuance of the order of this Court dated 13.02.2017 the petitioner

had submitted detailed representation on 23.02.2017, wherein he has

asserted that he is still in physical possession and no forceful

possession has been taken under sub-section 6 of Section 10 of Act,

1976. It has also been averred that the petitioner never surrendered

voluntarily his land after the alleged notice under sub-section (5) of

Section 10 of the Act, 1976 was issued to him. The District

Magistrate has rejected the representation of the petitioner by a

cryptic order only on the ground that the petitioner's land has been

declared surplus vide order date 27.10.1978 under sub-section (4) of

Section 8 of the Act, 1976 and 218.54 square meter has been declared

surplus. Declaration under sub-section (1) and sub-section (3) of

Section 10 of Act, 1976 was made in official gazette and after that

the information in terms of sub-section (5) of Section 10 of Act, 1976

was issued on 15.02.1982 and the compensation amount Rs.1092.70

was determined on 21.08.1998 and the possession to the Varanasi

Development Authority has been handed over before the Repeal Act

came into force and accordingly the representation of the petitioner

has been rejected. The order dated 02.05.2017 passed by the District

Magistrate is also under challenge in the instant writ proceedings.

A counter affidavit has been filed by the State. The stand taken

in the counter affidavit is that Lallan and Bachau, sons of Mitlu

(father of the petitioners) had filed detailed documents under sub-

section (1) Section 6 of Act, 1976 and a notice dated 21.10.1978 was

issued under sub-section (3) of Section 8 of the Act, 1976 against

which no objection was filed. Thereafter the competent authority on

27.10.1978 has passed an order under sub-section (4) of Section 8 of

the Act, 1976 and declared 218.54 square meter as surplus vacant

land. It is further averred that the necessary publication in terms of

sub-section (1) and sub-section (3) of Section 10 of the Act, 1976 was

issued and after issuance of the Government Order dated 26.12.1978

and 22.03.1980 a notice under sub-section (5) of Section 10 of the

Act, 1976 was issued to the petitioner for delivering the possession of

4

the land and that was done prior to the Repeal Act came into force.

A short counter affidavit was filed on behalf of the Varanasi

Development Authority wherein it is clearly mentioned that the

petitioner's land has not been transferred to the Varanasi Development

Authority. The said counter affidavit was sworn by the Tehsildar,

Varanasi Development Authority wherein it has been averred that the

Competent Officer has not transferred any surplus land of plot nos.

3/6, 18/1, 18/9 and 18/11 at Mauja Lakhanpur, Pargana Dehat, Tehsil

Amanat, District Varanasi to the Varansari Development Authority. It

is averred that neither the disputed land has been transferred to the

Varansari Development Authority nor the same is in its possession at

present.

(emphasis supplied)

In the rejoinder affidavit the petitioner has denied the allegation

made in the counter affidavit filed on behalf of the State that the

notice under sub-section (5) of Section 10 of the Act, 1976 has never

been served upon the petitioner and no proceeding under-section (6)

of Section 10 has been held. It is also stated that the State in its

counter affidavit has not given the date of peaceful possession or

actual physical possession taken by the State. It is also averred that

the possession of the land in dispute has not been taken by the State

nor the petitioner has voluntarily handed over the possession of his

land which was declared surplus land to the State.

We have heard Sri Raj Karan Yadav, the learned counsel for the

petitioner, Sri M.C.Chaturvedi, learned Senior Advocate assisted by

Sri R.P. Pandey, learned counsel for the Varanasi Development

Authority and the learned Standing Counsel and perused the materials

on record.

The learned counsel for the petitioner has submitted that the

petitioner has never handed over the possession of the disputed land

under sub-section (5) of Section 10 of Act, 1976 to the State and no

forceful possession has been taken from the petitioner under sub-

5

section (6) of Section 10 of the Act,1976.

It has been vehemently urged that the petitioner is still in

physical and cultivatory possession of the land and he has never

handed over the possession to the authority. He further submits that

in view of the fact that the petitioner is still in possession of the land

and no forceful possession has not been taken over by the State, the

proceedings under under the Act, 1976 stood abated in terms of sub-

section 2(a) of Section 3 of the Repeal Act. Lastly, he has urged that

the Varanasi Development Authority in its counter affidavit has

clearly admitted that the land in question has never been transferred

to it. Thus, a false statement has been made by the State in its counter

affidavit that the possession was handed over to the Varanasi

Development Authority. He further submitted that the State in its

counter affidavit has not disclosed the date when the possession was

taken.

The learned counsel for the petitioner has placed reliance on

the judgment of the Supreme Court in the case of State of U.P. v.

Hari Ram

3

, Lalji v. State of U.P. and another

4

, Yasin and

others v. State of U.P. and others

5

, and Ram Chandra

Pandey v. State of U.P. and others

6

,

Learned Standing Counsel submitted that after the notification

made under sub-section (1) of Section 10 and sub-section (3) of

Section 10 of the Act, 1976 the surplus land declared by the

competent authority stood vested with the State and in the revenue

records also the name of the State was recorded. He has placed

reliance on a judgment of the Supreme Court in the case of State of

Assam v. Bhaskar Jyoti Sharma and Others

7

, and Shiv

3 (2013) 4 SCC 280

4 2018 LawSuit (All) 1276:2018(5) ADJ 566

5 2014(4) ADJ 305(DB)

6 2010 (82) ALR 136.

7 2015 (5) SCC 321

6

Ram Singh Vs. State of U.P. & Others

8

,.

We have summoned the original record in the matter and the

learned Standing Counsel has stated that in this batch of writ petitions

there is no original possession memo in the original record. He also

failed to point out in the original record which indicates that after

taking possession from the petitioner it was handed over to the

Varanasi Development Authority.

From the record it is also evident that no proceedings under

sub-section (6) of Section 10 of the Act, 1976 has been taken.

Before adverting to the submissions raised by the learned

counsel for the parties it would be apposite to refer relevant

provisions of the Act, 1976.

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 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. For the sake of convenience,

8 2015 (5) AWC 4918

7

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

8

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

(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."

9

"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."

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

10

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, 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.”

It is significant to mention that 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

11

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

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-

12

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.

identificatio

n

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

lfpo]

mRrj izns'k 'kkluA

lsok esa]

ftykf/kdkjh]

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

vkxjk] esjB] eqjknkckn] vyhsx<] cjsyh]

lgkjuiqjA

13

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 lE;d :i

ls vf/kd'rd fdlh O;fDr ;k l{ke izkf/kdkjh us ys

fy;k gSA

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 fdlh fu.kZ; esa mlds

foL) fdlh ckr ds gksrs gq, Hkh fof/kekU;rk%

¼x½ /kkjk& 20 dh mi/kkjk& ¼1½ ds v/khu iznku

dh x;h NwV dh 'krZ ds :i es jkT; ljdkj dks fd;k

x;k dksbZ lank;%

¼2½ tgka&

¼d½ ewy vf/kfu;e dh /kkjk&10 dh mi/kkjk ¼3½

ds v/khu fdlh Hkwfe dks jkT; ljdkj esa 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

14

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 &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

15

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.

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

16

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”

Now, the question before us is whether in present set of facts

the proceedings shall abate in view of sub-section (2) of Section 3 of

the Act, 1999. The issue regarding the abatement of the Urban Land

Ceiling Proceeding in terms of sub-section (2) of Section 3 of the

Repeal Act fell for consideration before the Supreme Court in some

of the cases and in a large number of the cases in this Court. The law

laid down in the unbroken line of the judgments are 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 proceedings under Section 1976

shall be abated.

In the case of Hari Ram (supra) 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

17

Ceiling (Taking of Possession, Payment of Amount and Allied

Matters) Direction 1983. 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

18

"vesting" certain. 'To "vest",

generally means to give a property

in.' (Per Brett, L.J. Coverdale v.

Charlton15 : Stroud's Judicial

Dictionary, 5th Edn. Vol. VI.)

Vesting in favour of the unborn

person and in the contextual facts on

the basis of a subsequent adoption

after about 50 years without any

authorization cannot however but be

termed to be a contingent event. To

'vest', cannot be termed to be an

executor devise. Be it noted

however, that 'vested' does not

necessarily and always mean 'vest in

possession' but includes 'vest in

interest' as well."

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

case is concerned, the word "vesting" takes in

every interest in the property including de jure

possession and, not de facto but it is always open

to a person to voluntarily surrender and deliver

possession, under Section 10(3) of the Act.

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

section (6) of Section 10, let us examine the

meaning of sub-section (4) of Section 10 of the

Act, which says that during the period

commencing on the 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-

19

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.

9

. 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

9 JT 2014 (3) SC 211

20

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 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

10

, 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

10 2010 LawSuit (All) 3581

21

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)

22

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

11

. 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

11 2013 (7) ADJ 662 (DB)

23

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

12

, the Court has

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:

12 Writ-C No. 54830 of 2011, decided on 03.10.2018: LawSuit(All) 3470

24

"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

25

the face of the fact that the

tenureholder had in fact not

voluntarily made surrender of

possession of surplus land and no

proceeding under Section 10(6) had

taken place.

46. Since, we have held that

possession memo dated 20.06.1993 is

not a possession memo and is a void

document for want of necessary

compliance under Section 10(6) of the

Act, 1976, the petitioners are entitled

to the benefit under Section 4 of the

Repeal Act, 1999 that came into force

w.e.f. 20.03.1999.

47. We may also place on record that

respondents claim that possession of

land in question was handed over to

Saharanpur Development Authority

pursuant to Government Order dated

29.12.1984 but here also we find that

no material has been placed on record

to show that any such actual physical

possession was handed over to

Saharanpur Development Authority

and the said authority is in de facto

possession of land in dispute. Except

bare averment made in the counter-

affidavit respondent have not chosen

to place anything on record to support

the stand that de facto possession over

land in dispute is that of Saharanpur

Development Authority. Therefore

even this stand has no legs to stand

and is rejected.”

Applying the aforesaid principle in the present case, we find

that there is no possession memo on the record. In the counter

affidavit also copy of the possession memo has not been enclosed.

The date when the possession has been taken either under sub-section

(5) or sub-section (6) of Section 10 of the Act, 1976 has not been

mentioned in any of the affidavit filed by the State or the Varanasi

Development Authority. Thus, it is evident that the averments made

by the petitioner in the writ petition that he is still in possession

26

acceptance.

In addition, to the above the Varanasi Development Authority

in its short counter affidavit has categorically stated that the State has

not handed over the surplus land to it. Paragraph nos. 4 and 5 of the

counter affidavit filed by the Varanasi Development Authority are

extracted below:

“4. That it is pertinent to state here that a perusal

of relevant record reveals that the Competent

Officer, Urban Land Ceiling, Varanasi has not

transferred any surplus land of plot nos. 3/6, 18/1,

18/9, 18/11 at Mauja Lakhanpur, Pargana Dehat,

Tehsil Amanat, District Varanasi to the Varanasi

Development Authority, Varanasi till date.

5.That it is therefore reiterated that the

aforesaid land in dispute has neither been

transferred to the Varanasi Development

Authority nor the same is in its possession at

present.”

From the above quoted paragraphs of the counter affidavit filed

by the Varanasi Development Authroity it is clearly established that

the possession of the plots in question has not been handed over to

the Varanasi Development Authority. The statement made in the

counter affidavit filed by the State authorities in this regard is

incorrect. From the pleadings of the State and the submissions of the

learned Standing Counsel it appears to us that the State authorities

and the competent authorities are under impression that after the

notification under Section 10(3) of the Act,1976 the land in question

stands vested in the State, hence, the Repeal Act will have no

application.

We do not agree with the submission of the learned Standing

Counsel that the land is vested in the State irrespective of the physical

possession taken by the respondents or not. If the proposition is

accepted then the sub-section 2(a) of Section 3 of the Repeal Act shall

be redundant which clearly provides that if the land is deemed to have

been vested in the State under sub-section (3) of Section 10 of the

27

principal Act but possession of which has not been taken over by the

State Government, such land shall not be restored unless the amount

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

In the counter affidavit filed by the respondents there is no

averment that the compensation has been paid to the petitioner.

The averments made by the petitioner that it has not

surrendered the land to the respondents and they have not taken

possession from him has not been effectively denied in the counter

affidavit. It has also been stated that the petitioner is in actual

possession and no proceeding under sub-section (5) and sub-section

(6) of Section 10 of the Act, 1976 has been initiated. Along with the

counter affidavit only three documents have been brought on record,

notice under sub-section (4) of Section 8 of the Act, 1976, notice

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

sent by the competent authority to the Vice-Chairman of the Varanasi

Development Authority dated 6/12.05.1998. This communication

simply mentions that the possession was handed over to the Varanasi

Development Authority but no possession memo has been enclosed.

Moreover, when there is no document to support that the possession

was taken from the petitioner by the State authorities in accordance

with law then simply on the basis of a communication sent by the

competent authority to the Vice-Chairman, Varanasi Development

Authority to transfer the possession is not a compliance in terms of of

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

discussed above, in the counter affidavit there is no averment that the

petitioner was given compensation. Moreover, the communication of

the competent authority to the Vice-Chairman, Varanasi Development

Authority is not correct as the Varanasi Development Authority in its

counter affidavit, as discussed above, has clearly stated that the

surplus land has not been transferred to it.

As regards the judgment in the case of State of Assam

(supra) it was admitted by the land holder therein that the actual

physical possession of the land in question was taken over by the

28

State on 07.12.1991. The judgment of the State of Assam (supra)

was considered by a Division Bench of this Court in the case of Lalji

v. State of U.P. & 2 Others

13

,. The Court has held as under:

[29]. Faced with a situation where respondents

could not place even an iota of evidence showing

actual physical possession of disputed land by

respondent, learned Standing Counsel sought to

rely upon Supreme Court judgment in State of

Assam Vs. Bhasker Jyoti Sharma & Ors. 2015

(5) SCC 321 and contended that irrespective of

any defect in notice under Sections 10(5) or 10(6)

of Act, 1976, if possession has been taken in any

manner, Repeal Act 1999 will have no

application.

*** *** ***

[37]. We may also mention at this stage that

except bare averment that disputed land was

transferred to ADA by competent Authority, no

material has been placed on record about transfer

of possession to ADA and infact nothing has been

placed on record even to show that de facto

possession of land in dispute before or after

Repeal Act, 1999 is with ADA. ADA has also not

placed on record anything to show that land in

dispute is in its actual physical possession and in

absence thereof, we had no occasion to require

petitioner to prove, how de facto possession of

land in dispute came in the hands of ADA. With

regard to possession of land in dispute, except

bare averments, nothing has been placed on

record. It appears that respondents were under

impression that once notification under Section

10(3) has been issued, land in dispute vested in

'State' and thereafter, irrespective of fact whether

actual physical possession is taken by

respondents or not, land owner would cease to

have any right and Repeal Act, 1999 will have no

application though this assumption on the part of

respondents, as we have already discussed, stood

negated by Court in State Vs. Hari Ram."

In the case of Shiv Ram Singh (supra) the petitioner has

13 2018 (5) ADJ 541

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challenged the proceedings under the Act, 1976 after lapse of

considerable long time. In the said case notice under sub-section (1)

of Section 10 of the Act, 1976 was issued in 1985 and a notification

under sub-section (3) of Section 10 of the Act, 1976 was issued on

02.06.1986. The State had taken possession on 25.06.1993 prior to

the enforcement of the Repeal Act and the name of the State was

recorded in the revenue records. In that case the petitioner for the

first time challenged the proceedings in the year 2002 and when the

matter was remitted to the District Magistrate to decide the issue of

the actual possession on 10.05.2007, the District Magistrate after

considering the evidence adduced by the petitioner and the State by

its order dated 10.05.2007 found that the possession from the

petitioner was taken on 25.06.1993 pursuant to the notice dated

25.02.1987, i.e., prior to the enforcement of the Repeal Act.

Moreover, the order of the District Magistrate dated 10.05.2007 was

challenged by the petitioner after lapse of two years in July, 2009 and

in the meantime Jal Nigam at the surplus land had constructed

Sewage Treatment Plant (STP) at the cost of Rs. 73.00 crores. In

context of the said fact the Court had dismissed the writ petition of

the petitioner therein.

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

the land was never taken from the petitioner. He is still in cultivatory

and physical possession. On the basis of the materials on record we

are satisfied that the State authorities have not taken possession from

the petitioner in terms of sub-section 5 or sub-section (6) of Section

10 of the Act, 1976 and he is still in possession. Hence, in our view,

the proceedings initiated under the Act,1976 stands abated in terms of

sub-section 2(a) of Section 3 of the Repeal Act. The order of the

District Magistrate dated 02.05.2017 is set aside and the proceedings

under Act, 1976 is abated. The writ petition is, accordingly, allowed.

Order Date :-17.9.2019

MAA/-

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