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Reserved

A.F.R.

Court No. - 4

Case :- WRIT - C No. - 33121 of 2017

Petitioner :- Smt. Bedo

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

Counsel for Petitioner :- Vishnu Sahai, Bhupeshwar Dayal

Counsel for Respondent :- C.S.C.

Hon'ble Bala Krishna Narayana,J.

Hon'ble Prakash Padia,J.

Delivered by Hon'ble Bala Krishna Narayana, J.

Heard Sri Bhupeshwar Dayal, learned counsel for the petitioner and

learned Standing Counsel for the respondent nos. 1 to 3.

The instant writ petition has been filed by the petitioner with the

following prayer to :-

(i) a writ, order or direction in the nature of certiorari calling for the record and

to quash the impugned order dated 18.05.2017 passed by the respondent no.

3 (Annexure No. 3 to the writ petition);

(ii) a writ, order or direction in the nature of mandamus commanding the

respondents not to interfere with the possession of the petitioner over Plot No.

1346 area 3-19-13 situate in village- Maliyana, Pargana, Tehsil and District-

Meerut;

(iii) a writ, order or direction in the nature of mandamus commanding the

respondents to delete the name of the respondent State from the revenue

record and to mutate the name of the petitioner who is owner of the land in

dispute;

(iv) any other writ, order or direction which this Hon'ble Court deems fit and

proper in the facts and circumstances of the case;

(v) award cost of writ petition to the petitioner throughout.

The facts of this case are as hereunder :-

The petitioner claims herself to be the owner of Plot No. 1346 area

3-19-13 situate in village- Maliyana, Pargana, Tehsil, District- Meerut,

hereinafter referred to as the 'disputed plot'. Proceedings under The Urban

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Land (Ceiling and Regulation) Act, 1976, hereinafter referred to as the

'principal Act', were initiated against the petitioner on the basis of the

return submitted by her u/s 6 (1) of the principal Act, whereupon 8656.53

sq. m. of her land was declared surplus vide ex-parte order dated

27.06.1979 passed by the respondent no. 3. The order dated 27.06.1979

was assailed by the petitioner by filing an appeal before the District

Judge, Meerut which was registered as Appeal No. 73/1984 and allowed

by him by judgement and order dated 05.01.1988. In the interregnum

pursuant to the ex-parte order dated 27.06.1979 passed by the respondent

no. 3, notifications u/s 10 (1) and 10 (3) of the principal Act were issued

which were followed by a notice issued u/s 10 (5) of the principal Act

requiring the petitioner to deliver possession of the land declared surplus.

The petitioner claims that no notice was served on her u/s 10 (6) of the

principal Act as the possession was resisted by her and hence, the same

could not have been taken without serving of notice u/s 10 (6) of the

principal Act on her and the petitioner continued to remain in actual

physical possession of the surplus land of the disputed plot despite the

passing of the ex-parte order dated 27.06.1979 till the same was set-aside

by the order dated 05.01.1988 passed by the appellate court. The appellate

court by its order dated 05.01.1988 after setting aside the ex-parte order

dated 27.06.1979 of the respondent no. 3, remanded the matter back to the

respondent no. 3 who after remand, again declared an area of 8656.53 sq.

m. of disputed plot as surplus by his order dated 30.01.1992. Against the

order dated 30.01.1992, the petitioner filed an Appeal No. 9 of 1992

before the District Judge, Meerut. However, the said appeal stood abated

by order dated 14.12.1999 passed by the appellate court upon coming into

force of The Urban Land (Ceiling and Regulation) Repeal Act, 1999,

hereinafter referred to as the 'Repeal Act, 1999'. Since the petitioner was

still in possession of the surplus area although the name of State had been

mutated in the revenue record, she moved an application before the

respondent no. 3 for deleting the entry made in favour of the State of Uttar

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Pradesh and for restoring her name in the revenue record claiming the

benefit of the Repeal Act, 1999. Copy of the aforesaid application has

been brought on record as Annexure No. 1 to the writ petition. However,

when no order was passed on the petitioner's aforesaid application, she

filed Civil Misc. Writ Petition No. 18199/2011 which was finally disposed

of by another coordinate Bench of this Court by order dated 22.02.2017

which has been reproduced hereinbelow :-

Learned Standing Counsel states that he has filed counter affidavit

on 13.9.2013, that is not on the record. Sri Ashish Kumar Singh,

learned counsel for the petitioner states that he has filed rejoinder

affidavit in the year 2015 itself, that is also not on the record.

Both the counsel have provided true copy of the counter affidavit

and rejoinder affidavit,which are taken on record.

We have heard Sri Ashish Kumar Singh, learned counsel for the

petitioner and learned Standing Counsel for the State

respondents.

By means of this writ petition, following prayer has been made :-

(A) To issue a writ, order or direction in the nature of mandamus

commanding the respondents-authorities mainly respondent no. 3

to mutate the petitioner's name over Plot No. 1346 area 3 bighas

19 biswas 13 biswansis, village Maliyana Pargana Tehsil and

District Meerut.

(B) To issue a writ, order or direction in the nature of mandamus

commanding the respondents-authorities mainly respondent no. 3

to dispose of the petitioner's application for mutation of her name

over the land in question pursuant to Urban Land Ceiling Repeal

Act, 1999.

(C) To issue any other writ order or direction which this Hon'ble

Court may deem fit and proper under the circumstances of the

case.

(D) Award cost of the writ petition in favour of the petitioner.

Considering the petitioner's prayer, this Court, on 29.3.2011, has

granted time to the learned standing counsel to file counter

affidavit. Again on 10.5.2013, learned standing counsel was

granted one month and no more time to file counter affidavit.

Pursuant thereto, counter affidavit has been filed.

In paragraph 6 of the counter affidavit, following averments have

been made :-

6. That the contents of paragraph 3 of the writ petition

are not admitted and in reply it is submitted that an

appropriate reply of the petitioner's representation dated

20.3.2011 for mutating her name over khasra No. 1346

by deleting the name of the petitioner, has already been

sent to the petitioner by office letter dated 18.4.2011.

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The reply of paragraph 6 of the counter affidavit has been given in

paragraph 5 of the rejoinder affidavit, which is reproduced herein

under :-

5. That the averments made in para 6 of the counter

affidavit are not admitted, as stated, hence denied. In

reply, it is submitted that till date petitioner has not

received any reply vide alleged office letter dated

18.4.2011. The alleged letter dated 18.4.2011 has never

been served upon the petitioner prior to filing of the

present writ petition which was filed in the month of

March, 2011. The Respondent Authority for the reasons

best known has not filed the office letter dated 18.4.2011

which according to petition is nothing but an eye wash. It

has also come to know that in the aforesaid letter, it has

been asserted that the application would be disposed of

only after disposal of the present writ petition.

From the perusal of para 6 of the counter affidavit and para 5 of

the rejoinder affidavit, it appears that the stand taken by the

learned Standing Counsel, that an order for mutating the

petitioner's name has already been passed, has been denied by

the petitioner.

Considering the same, it is directed that the petitioner may file an

application along with certified copy of this order before the

respondent no. 3 demanding the copy of the order passed on the

mutation application. In case, such an application is filed, copy of

the order be provided to the petitioner within a period of two weeks

from the date of filing of the application.

In case, the order has yet not been passed, the same shall be

passed on the petitioner's application within a period of ten weeks

after hearing all concerned.

It may be clarified that we have not addressed ourselves on the

merit of the matter and it is in the sole domain of the respondent

no. 3 to do the needful in accordance with law.

Thereafter, it appears that the respondent no. 3 by the impugned

order dated 18.05.2017 rejected the petitioner's application holding that

since the Tehsildar- Meerut had obtained possession of the area of

8656.53 sq. m. of petitioner's plot which was declared surplus on

19.07.1981 and handed over its possession to the State Government, much

before coming into force of the Repeal Act, 1999, the petitioner was not

entitled to any benefit of the Repeal Act, 1999.

In paragraphs 18 and 20 of the counter affidavit which has been

filed on behalf of the respondent nos. 2 and 3 in this writ petition, it has

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been contended that possession of the surplus land was taken and was

handed over to the State Government on 29.07.1981, and hence, there was

no requirement of issuing any notice further u/s 10 (6) of the principal

Act. In paragraph 4, it was stated that the possession of the petitioner's

land which was declared surplus by the order dated 27.06.1979 passed by

the respondent no. 3 was taken on 29.07.1981 after giving due notice to

the petitioner on 30.05.1981 u/s 10 (5) of the principal Act which was

preceded by following the provisions of Section 9, 10 (1) and 10 (3) of the

principal Act. Copies of notice dated 30.05.1981 and possession memo

dated 29.07.1981 have been brought on record as Annexure Nos. C.A.-1

& 2 respectively to the counter affidavit filed in the writ petition.

That reply to the paragraph nos. 18 and 20 of the counter affidavit

has been given by the learned counsel for the petitioner in paragraph 14 of

the rejoinder affidavit filed in this writ petition. In the said paragraph,

apart from denying the allegations made in paragraph nos. 16 to 21 of the

counter affidavit filed on behalf of the respondent nos. 2 and 3, it has been

stated that proceedings u/s 9, 10 (1) and 10 (3) of the principal Act stood

set-aside by the judgement and order dated 05.01.1988 passed by the

District Judge, Meerut and the matter was remanded back for decision

afresh and no possession was ever delivered to the ceiling authorities and

since no proceedings for taking possession after passing of the aforesaid

order after remand was initiated by the ceiling authorities, there is no

question of possession of the surplus land having ever been taken by the

ceiling authorities. It was also stated that even where ex-parte proceedings

are taken, issuance of notice u/s 10 (6) of the principal Act is required and

since the prescribed procedure was not followed, the possession memo,

copy whereof has been brought on record as Annexure No. C.A.-2 to the

counter affidavit filed in the writ petition, was a paper transaction.

The petitioner in paragraph 4 of the rejoinder affidavit, apart from

denying the allegations made in paragraph 4 of the counter affidavit

further stated that the ex-parte order dated 27.06.1979 passed u/s 8 (4) of

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the principal Act and the subsequent proceedings taken in pursuance

thereof were wholly illegal and the order dated 27.06.1979 was set-aside

by the appellate court by allowing the appeal filed by the petitioner

against the ex-parte order and the matter was remanded back for deciding

the case afresh. It was further stated in the same paragraph that the

possession memo dated 30.05.1981 was a mere paper transaction as no

possession was delivered by the petitioner and further no notice u/s 10 (6)

of the principal Act was ever issued to her.

In paragraph 5 of the counter affidavit, it has further been observed

that after the appeal preferred by the petitioner against the judgement and

order dated 27.06.1979 of the respondent no. 3 was allowed by the

District Judge, Meerut, the matter was remanded back to the respondent

no. 3 who by his order dated 30.01.1992 again declared an area of

8656.53 sq. m. of the disputed plot as surplus. Copy of the order dated

30.01.1992 has been brought on record as Annexure No. C.A.-4 to the

counter affidavit filed in the writ petition.

Sri Bhupeshwar Dayal, learned counsel for the petitioner has

submitted that the finding recorded by the respondent no. 3 in the

impugned order dated 27.06.1979 that the possession of the surplus area

of the disputed plot stood with the State Government on the date of the

coming into force of the Repeal Act, 1999, is per se illegal and not

warranted by any material on record. He next submitted that even if it is

assumed for the sake of arguments that the possession of the surplus land

of the petitioner was taken by Tehsildar- Meerut on 29.07.1981 and

delivered to the State Government after the passing of the ex-parte order

dated 27.06.1979 by the respondent no. 3, even then the so-called

possession memo dated 29.07.1981 does not indicate that the possession

was taken by the Tehsilder- Meerut from the petitioner. There being

absolutely no material on record even prima facie indicating that when

after the passing of the order dated 30.01.1992 by the respondent no. 3

after remand by which again an area of 8656.53 sq. m. of the disputed plot

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was declared surplus, any proceedings u/s 10 (1), 10 (3), 10 (5) and 10 (6)

of the principal Act were taken by the ceiling authorities as after the

setting-aside of the order of the respondent no. 3 dated 27.06.1979 on

appeal preferred by the petitioner, all subsequent proceedings taken

pursuant thereto became a nullity because the legal consequence which

followed was that there existed no order declaring any land of the

petitioner surplus and land continued to remain in possession of the

petitioner. He next contended that there being no material on record that

any fresh proceedings u/s 10 (1), 10 (3), 10 (5) and 10 (6) of the principal

Act were taken by the respondent no. 3 after the passing of the order dated

30.01.1992 by the respondent no. 3 on remand, it could not be held that

the State Government was in possession of the surplus land on the date of

the coming into force of the Repeal Act, 1999 and hence, the petitioner

was not entitled to any benefit thereof, the view taken to the contrary by

the respondent no. 3 in the impugned order dated 18.05.2017, cannot be

sustained and the impugned order is liable to be set-aside.

Per contra learned Standing Counsel appearing for the respondent

nos. 1 to 3 supported the impugned order by relying upon the proceedings

which were taken u/s 10 (1), 10 (3) and 10 (5) of the principal Act which

were taken pursuant to the order passed by the respondent no. 3 on

27.06.1979 u/s 8 (4) of the principal Act and the possession memo dated

29.07.1981 submitted that it is an admitted factual position that after the

order dated 27.06.1979 was set-aside on appeal preferred by the

petitioner, the petitioner had not moved any application before the ceiling

authorities for restoration of possession of the surplus land to her which

was taken from her by the Tehsildar- Meerut and handed over to the State

Government on 29.07.1981. He next submitted that argument advanced

by the learned counsel for the petitioner that once the order dated

27.06.1979 was set-aside, the entire proceedings taken pursuant thereto

become a nullity and the petitioner continued to remain in possession of

the surplus land despite her having not taken any steps for restitution of

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the possession, is not only misconceived but also preposterous. The

respondent no. 3 did not commit any illegality or legal infirmity in

denying to the petitioner the benefit of the Repeal Act, 1999. This writ

petition which lacks merit is liable to be dismissed.

We have heard learned counsel for the parties and perused the

pleadings as well as the original record which was produced before us by

the learned Standing Counsel.

The twin questions which arise for our consideration in this writ

petition inter-alia are that whether on the date of the coming into force of

the Repeal Act, 1999, actual physical possession of the disputed land was

with the petitioner or the same stood delivered to the State and; whether

the petitioner is entitled to the benefit of the Repeal Act ?

In order to examine the aforesaid questions, it would be useful to

reproduce the provisions of The Urban Land (Ceiling and Regulation)

Act, 1976 and The Urban Land (Ceiling and Regulation) Repeal Act,

1999 which are relevant for our purpose :-

6. Persons holding vacant land in excess of ceiling limit to file statement-

(1) Every person holding vacant land in excess of the ceiling

limit at the commencement of this Act shall, within such

period as may be prescribed, file a statement before the

competent authority having Jurisdiction specifying the

location, extent, value and such other particulars as may be

prescribed of all vacant land and of any other land on which

there is a building, whether or not with a dwelling unit

therein, held by him (including the nature of his right, title

or interest therein) and also specifying the vacant land

within the ceiling limit which he desires to retain: Provided

that in relation to any State to which this Act applies in the

first instance, the provisions of this sub-section shall have

effect as if for the words “Every person holding vacant land

in excess of the ceiling limit and the commencement of this

Act”, the words, figures and letters “Every person who held

vacant land in excess of the ceiling limit on or after the 17th

day of February, 1975 and before the commencement of this

Act and every person holding vacant land in excess of the

ceiling limit at such commencement” had been substituted.

Explanation.—In this section, “commencement of this Act”

means,—

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(i) the date on which this Act comes into force in

any State;

(ii) where any land, not being vacant land, situated

in a State in which this Act is in force has become

vacant land by any reason whatsoever, the date on

which such land becomes vacant land;

(iii) where any notification has been issued under

clause (n) of section 2 in respect of any area in a

State in which this Act is in force, the date of

publication of such notification.

(2) If the competent authority is of opinion that—

(a) in any State to which this Act applies in the first

instance, any person held on or after the 17th day of

February, 1975 and before the commencement of this Act or

holds at such commencement; or

(b) in any State which adopts this Act under clause (1) of

article 252 of the Constitution, any person holds at the

commencement of this Act, vacant land in excess of the

ceiling limit, then, notwithstanding anything contained in

sub-section (1), it may serve a notice upon such person

requiring him to file, within such period as may be specified

in the notice, the statement referred to in sub-section (1).

(3) The competent authority may, if it is satisfied that it is necessary so

to do, extend the date for filing the statement under this section by such

further period or periods as it may think fit; so, however, that the period

or the aggregate of the periods of such extension shall not exceed three

months.

(4) The statement under this section shall be filed,—

(a) in the case of an individual, by the individual himself;

where the individual is absent from India, by the individual

concerned or by some person duly authorised by him in

this behalf; and where the individual is mentally

incapacitated from attending to his affairs, by his guardian

or any other person competent to act on his behalf;

(b) in the case of a family, by the husband or wife and

where the husband or wife is absent from India or is

mentally incapacitated from attending to his or her affairs,

by the husband or wife who is not so absent or mentally

incapacitated and where both the husband and the wife are

absent from India or are mentally incapacitated from

attending to their affairs, by any other person competent to

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act on behalf on the husband or wife or both;

(c) in the case of a company, by the principal officer thereof;

(d) in the case of a firm, by any partner thereof;

(e) in the case of any other association, by any member of

the association or the principal officer thereof; and

(f) in the case of any other person, by that person or by a

person competent to act on his behalf. Explanation.—For

the purposes of this sub-section, “principal officer”—

(i) in relation to a company, means the secretary,

manager or managing- director of the company;

(ii) in relation to any association, means the secretary,

treasurer, manager or agent of the association, and

includes any person connected with the management of

the affairs of the company or the association, as the

case may be, upon whom the competent authority has

served a notice of his intention of treating his as the

principal officer thereof.

7. Filing of statement in cases where vacant land held by a person is

situated within the jurisdiction of two or more competent authorities.—

(1) Where a person holds vacant land situated within the

jurisdiction of two or more competent authorities, whether

in the same State or in two or more States to which this Act

applies, then, he shall file his statement under sub-section

(1) of section 6 before the competent authority within the

jurisdiction of which the major part thereof is situated and

thereafter all subsequent proceedings shall be taken before

that competent authority to the exclusion of the other

competent authority or authorities concerned and the

competent authority, before which the statement is filed,

shall send intimation thereof to the other competent

authority or authorities concerned.

(2) Where the extent of vacant land held by any person and

situated within the jurisdiction of two or more competent

authorities within the same State to which this Act applies is

equal, he shall file his statement under sub-section (1) of

section 6 before any one of the competent authorities and

send intimation thereof in such form as may be prescribed to

the State Government and thereupon, the State Government

shall, by order, determine the competent authority before

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which all subsequent proceedings under this Act shall be

taken to the exclusion of the other competent authority or

authorities and communicate that order to such person and

the competent authorities concerned.

(3) Where the extent of vacant land held by any person and

situated within the jurisdiction of two or more competent

authorities in two or more States to which this Act applies is

equal, he shall file his statement under sub-section (1) of

section 6 before any one of the competent authorities and

send intimation thereof in such form as may be prescribed to

the Central Government and thereupon, the Central

Government shall, by order, determine the competent

authority before which all subsequent proceedings shall

betaken to the exclusion of the other competent authority or

authorities and communicate that order to such person, the

State Governments and the competent authorities

concerned.

8. Preparation of draft statement as regards vacant land held in excess of

ceiling limit-

(1) On the basis of the statement filed under section 6 and

after such inquiry as the competent authority may deem fit to

make the competent authority shall prepare a draft statement

in respect of the person who has filed the statement under

section 6.

(2) Every statement prepared under sub-section (1) shall

contain the following particulars, namely:—

(i) the name and address of the person;

(ii) the particulars of all vacant land and of any

other land on which there is a building, whether or

not with a dwelling unit therein, held by such

person;

(iii) the particulars of the vacant lands which such

person desires to retain within the ceiling limit;

(iv) the particulars of the right, title or interest of

the person in the vacant land; and

(v) such other particulars as may be prescribed.

(3) The draft statement shall be served in such manner as

may be prescribed on the person concerned together with a

notice stating that any objection to the draft statement shall

be preferred within thirty days of the service thereof.

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(4) The competent authority shall duly consider any objection

received, within the period specified in the notice referred to

in sub-section (3) or within such further period as may be

specified by the competent authority for any good and

sufficient reason, from the person whom a copy of the draft

statement has been served under that sub-section and the

competent authority shall, after giving the objector a

reasonable opportunity of being heard, pass such orders as it

deems fit.

9. Final Statement.—After the disposal of the objections, if any, received

under sub-section (4) of section 8, the competent authority shall make the

necessary alterations in the draft statement in accordance with the orders

passed on the objections aforesaid and shall determine the vacant land

held by the person concerned in excess of the ceiling limit and cause a

copy of the draft statement as so altered to be served in the manner

referred to in sub-section (3) of section 8 on the person concerned and

where such vacant land is held under a lease, or a mortgage, or a hire-

purchase agreement, or an irrevocable power of attorney, also on the

owner of such vacant land.

10. Acquisition of vacant land in excess of ceiling limit-

(1) As soon as may be after the service of the statement

under section 9 on the person concerned, the competent

authority shall cause a notification giving the particulars of

the vacant land held by such person in excess of the ceiling

limit and stating that—

(i) such vacant land is to be acquired by the

concerned State Government; and

(ii) the claims of all person interested in such

vacant land may be made by them personally or by

their agents giving particulars of the nature of their

interests in such land, to be published for the

information of the general public in the Official

Gazette of the State concerned and in such other

manner as may be prescribed.

(2) After considering the claims of the persons interested in

the vacant land, made to the competent authority in

pursuance of the notification published under sub-section

(1), the competent authority shall determine the nature and

extent of such claims and pass such orders as it deems fit.

(3) At any time after the publication of the notification under

sub-section (1) the competent authority may, by notification

published in the Official Gazette of the State concerned,

declare that the excess vacant land referred to in the

notification published under sub-section (1) shall, with effect

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from such date as may be specified in the declaration, be

deemed to have been acquired by the State Government and

upon the publication of such declaration, such land shall be

deemed to have vested absolutely in the State Government

free from all encumbrances with effect from the date so

specified.

(4) During the period commencing on the date of publication

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

date specified in the declaration made under sub-section (3)—

(i) no person shall transfer by way of sale,

mortgage, gift, lease or otherwise any excess vacant

land (including any part thereof) specified in the

notification aforesaid and any such transfer made in

contravention of this provision shall be deemed to

be null and void; and

(ii) no person shall alter or cause to be altered the

use of such excess vacant land.

(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 authorized by the State

Government in this behalf within thirty days of the service of

the notice.

(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.

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Section 3 and 4 of the Repeal Act, 1999 are as hereunder :-

3. Saving.—

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

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

Section 10, possession of which has been taken over the

State Government or any person duly authorised 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

authorised 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.

Upon perusal of the aforesaid provisions of the principal Act, it

transpires that Section 6 provides that every person holding vacant land in

excess of the ceiling limit was required to file a statement before the

competent authority having jurisdiction specifying the location, extent,

value and such other prescribed particulars of the vacant land and of any

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other land on which there was a building, whether or not with a dwelling

unit therein, held by him.

Section 7 provides the procedure for filing of statement in cases

where vacant land held by a person was situated within the jurisdiction of

two or more competent authorities.

Section 8 provides that on the basis of the statement filed u/s 6 and

after such inquiry as the competent authority may deem fit to make, the

competent authority shall prepare the draft statement.

Section 8 (3) stipulates that the draft statement prepared u/s 8 shall

be served on the person concerned together with a notice stating that any

objection to the draft statement shall be prepared within 30 days of the

service thereof.

Section 9 provides that after disposal of the objections, if any,

received under sub-section (4) of Section 8, the competent authority shall

prepare the final statement.

Section 10 (1) provides that after the service of the statement u/s 9

on the person concerned, the competent authority shall cause a

notification giving the particulars of the vacant land held by such person

in excess of the ceiling limit to be published in the Official Gazette of the

State concerned for the information of the general public.

Section 10 (2) empowers the competent authority to decide the

claims of the persons interested in the vacant land filed in pursuance of

the notification published under sub-section (1).

Section 10 (3) provides that the competent authority concerned

may, by notification published in the Official Gazette of the State

concerned, anytime after the publication of the notification under sub-

section (1) declare that excess vacant land referred to in the notification

published under sub-section (1) with effect from such date as may be

specified in the declaration, be deemed to be have been acquired by the

State Government. Such land shall be deemed to have vested absolutely in

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the State Government free from all encumbrances.

Section 10 (4) prohibits transfer by way of sale, mortgage, gift,

lease or otherwise by any person any excess vacant land (including any

part thereof) specified in the notification aforesaid and any such transfer

made in contravention of this provision shall be deemed to be null and

void and no person shall alter or cause to be altered the use of such excess

vacant land.

Section 10 (5) empowers the competent authority to order any

person by notice in writing who is in possession of any vacant land vested

in the State Government under sub-section (3) to surrender or deliver

possession thereof to State Government or to any person duly authorized

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

the notice.

Section 10 (6) states where 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 authorized by such State

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

be necessary.

The kind of possession contemplated u/s 3 & 4 of the Repeal Act,

1999, in our opinion, is actual possession and not a mere paper possession

and if the possession of the petitioner's land which was declared surplus

land stood vested in the State Government u/s 10 (3) of the principal Act

was not taken and no proceedings u/s 11, 12, 13 and 14 of the principal

Act were pending on the date of coming into force of the Repeal Act,

1999, the petitioner is entitled to the benefit of the Repeal Act, 1999.

In the instant case, there is no dispute about the fact that after the

order dated 30.01.1992 passed by the competent authority on remand, no

proceedings u/s 10 of the principal Act were taken.

Learned Standing Counsel has placed reliance in support of his

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contention that the State Government had taken actual physical possession

of the disputed land from the petitioner pursuant to the proceedings taken

u/s 10 (1) to 10 (6) of the principal Act after the passing of the order dated

27.06.1979 by the respondent no. 3 which was eventually set-aside by the

District Judge, Meerut by his order dated 05.01.1988 passed in Appeal

No. 73/1984 preferred by the appellant against order dated 27.06.1979.

Now, the question which arises before us is that whether, even if it

is assumed for the sake of arguments that the possession of the petitioner's

surplus land was taken from him and delivered to the State Government

u/s 10 (1) to 10 (6) of the principal Act as argued by the learned Standing

Counsel pursuant to the order dated 27.06.1979, a fact which has been

seriously disputed by Sri Bhupeshwar Dayal, learned counsel for the

petitioner, the same shall enure to the benefit of the State Government,

even after setting-aside of the order pursuant to which the aforesaid

proceedings were taken ?

Before examining the aforesaid aspect of the matter, we first

propose to delve into the issue whether the possession of the petitioner's

land was taken and delivered to the State Government pursuant to the

order dated 27.06.1979 passed by the competent authority ?

There is dispute about the fact that the possession of the surplus

land was delivered by the petitioner to the State Government upon

issuance of notice u/s 10 (5) of the principal Act as there is nothing on

record which may indicate that the notice u/s 10 (5) of the principal Act

was ever served upon the petitioner. We could not find any endorsement

of the service of notice upon the petitioner after going through the record.

There is also no material on record indicating that any notice was issued

to the petitioner u/s 10 (6) of the principal Act before possession of the

surplus land of the disputed plot was allegedly taken.

In State of U.P. v. Hari Ram, reported in (2013) 4 SCC

280, the Apex Court observed that what is required for a land to come out

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from the purview of Repeal Act is that it should be a case of forceful

dispossession in the event of there being no peaceful dispossession. The

peaceful dispossession is related to proceedings u/s 10 (5) of the principal

Act, whereas, the forceful dispossession is related to proceedings u/s 10

(6) of the principal Act vide paragraph 39 of Hari Ram (supra), the

Court concluded thus :-

“39. Above-mentioned directives make it clear that sub-section (3)

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

therefore, it the land owner is not surrendering possession

voluntarily under sub-section (3) of Section 10, or surrendering or

delivering possession after notice, u/s 10 (5) or dispossession by

use of force, it cannot be said that the State Government has

taken possession of the vacant land.”

(emphasis added)

Now, coming back to the instant case, we find that there is nothing

on record indicating that forceful possession of the surplus land of the

petitioner u/s 10 (6) of the principal Act was taken from the petitioner.

Reliance has been placed by the learned Standing Counsel on

possession memo dated 29.07.1981, copy whereof has been brought on

record as Annexure Nos. C.A.- 2 to the counter affidavit filed in the writ

petition. There is nothing in the possession memo even remotely

suggesting that it was prepared in proceedings purported to have been

taken in Section 10 (6) of the principal Act. The possession memo neither

gives the details nor the area of the land of which the possession was

allegedly taken. The possession memo, in our opinion, is nothing but a

mere paper transaction and it is not safe to hold on the basis thereof that

the surplus land of the disputed plot of the petitioner was in the possession

of the State Government on the date of the coming into force of the

Repeal Act, 1999.

Even otherwise, if for the sake of arguments, it is assumed that the

State Government had dispossessed the petitioner in proceedings taken

pursuant to the order dated 27.06.1979 passed by the competent authority

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but once the said order was set-aside on appeal and the matter was

remitted back to the competent authority, all consequential action taken

pursuant to that order also stood annulled.

Paragraph nos. 16 and 17 of the order passed by another coordinate

Bench of this Court in the case of M/s. A.B.P. Design Sonakpur

Versus Moradabad Development Authority and others reported

in 2018 (8) ADJ 747 (DB), which are relevant for our purpose, are

being reproduced hereinbelow :-

16.Against order dated 16.03.1988, Zahid Hussain

preferred Revenue Appeal No. 23 of 1988. This appeal

was allowed by District Judge, Moradabad vide judgement

dated 6.1.1993 and Competent Authority was directed to

decide the matter afresh after taking into consideration

amended master plan. In the meantime, Competent

Authority issued notification dated 27.09.1988 under

Section 10 (1) of Act, 1976, vesting surplus land in the

State and therein disputed land of Plot No. 200, area

1295.04 sq. mts., was mentioned.

17.Whether any subsequent proceedings were

undertaken thereafter or not, no material has come on

record in this regard. It is also not clear when possession

was taken by Competent Authority from landowner under

the provisions of Act, 1976. A copy of letter dated

31.7.1992 has been placed on record which is addressed

to Competent Authority, Urban Land Ceiling, Moradabad

and states that possession of land, detailed therein, is

being handed over by Naib Tehsildar, Urban Ceiling

Moradabad to Naib Tehsildar, MDA on 31.7.1992.

Apparently this letter is only to show a “paper possession”

and not “actual physical possession” of land, declared

surplus by Competent Authority vide order dated

16.3.1988. The appeal against order dated 16.3.1988

having been allowed vide judgement dated 6.1.1993 and

matter was remanded to Competent Authority,

consequence thereof, in our view, would be as if no order

of Competent Authority declaring any land of Zahid

Hussain 'surplus' remained in existence and if that be so,

no question of any valid vesting of land in State or taking

possession thereof would arise.”

Since, we have found that actual physical possession of the

petitioner's surplus land was never taken by the State Government from

the petitioner and the petitioner stood in possession of the surplus land on

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the date of the coming into force of the Repeal Act, 1999, this writ

petition deserves to be allowed.

Accordingly, the writ petition is allowed.

The impugned order dated 18.05.2017 is hereby quashed. A further

direction is issued to the respondents to expunge the respondent-State

from the revenue record and to restore that of the petitioner who is the

owner of the land in dispute.

Order Date :- 21.11.2019

KS