# Ashok v. State Of U.P. & Anr

- **Citation:** (2016) 5 ILRA 1838
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-05
- **Bench:** Sudhir Agarwal, Shamsher Bahadur Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-v-state-of-u-p-anr-43861
- **Pages:** 8

## Headnote

C.S.C.

Held -

Para 1: The Court heard the petitioner's counsel and reviewed the case records.
Para 2: The petitioner argued that although land was declared "surplus" under the Urban Land (Ceiling and
Regulation) Act, 1976, actual possession was never taken. Therefore, following the Repeal Act of 1999, the
state can no longer claim the land.
Para 3: The Court noted that original records produced in 2008 proved a Possession Certificate was issued on
October 19, 1987. Based on this, the Court had previously denied an interim order.
Para 4: The State's counter-affidavit confirmed that final statements and notifications (under Sections 9 and
10) were published in 1983 and 1985. A notice to surrender possession was issued in February 1987.
Para 5: The State provided a Dakhalnama (Possession Memo) dated October 19, 1987, showing that 4733.37
sq. meters of land was taken in the presence of witnesses.
Para 6: The petitioner countered that this was merely "paper possession" and not "actual physical
possession."
Para 7: The Court dismissed this argument as misconceived, citing established legal principles regarding what
constitutes "taking possession" by the State.
Paras 8-9: Citing Balwant Narayan Bhagde, the Court explained that the mode of taking possession depends
on the nature of the land. For fallow or vacant land, a spot inspection and declaration (even without the
owner's presence) are sufficient to constitute "actual possession."
Paras 10-12: Several precedents establish that possession in acquisition proceedings is legally accepted when
taken via a Memorandum or Panchnama. Any subsequent occupation by the original owner is considered
illegal.
Para 13: In Tamil Nadu Housing Board v. A. Viswam, the Court held that recording a Panchnama in the
presence of witnesses is one of the accepted modes of taking possession, as taking physical hold of every inch
of land is impossible.
Paras 14-17: Further rulings (Larsen & Toubro, Sita Ram Bhandar, etc.) affirm that a signed Panchnama
serves as sufficient evidence of vesting the land in the Government, regardless of whether the owner still
physically occupies it or if revenue mutations are delayed.
Para 18: The Court highlighted the Banda Development Authority case, which crystallized five principles:
No fixed rule for possession exists.
For vacant land, a Panchnama is sufficient.
For land with crops/buildings, notice and independent witnesses are required.
For large tracts, symbolic possession via documentation is enough.
Presumption of possession is higher if 80% compensation is paid and land is utilized.
Para 19: A Division Bench of the High Court previously upheld that endorsements by officials on authority
letters constitute valid possession by revenue authorities.
Para 20: The Court concluded that since possession was legally taken in 1987 (well before the 1999 Repeal
Act), the petitioner's claim that the land is "vacant" is rejected.
Paras 21-22: The writ petition was dismissed with costs of Rs. 10,0

## Text

1838 INDIAN LAW REPORTS ALLAHABAD SERIES
compliance of the orders for the removal of unauthorized encroachments. Undoubtedly, the persons who
are affected by proceedings and orders, are entitled to pursue their rights and remedies in accordance with
law. Hence, when these issues repeatedly come before this Court, a direction is issued for the purpose of
verifying whether the order continues to hold the field or is subject matter of any other proceedings before
a revisional forum. Where stay has been granted and where revisional remedies are pursued, the matter
must be brought to expeditious conclusion. These guidelines which we have laid down, in addition to
those of the judgment of the Division Bench in Om Prakash Verma (supra), are by way of guidelines to
the Principal Secretary (Revenue) who is the head of the administration in such matters and matters
pertaining to revenue. We now expect that the Principal Secretary shall duly apply his mind, preferably
within a period of two months from today of the need to lay down a complete plan of action to ensure
accountability on the part of the district administration and to ensure transparency in governance. The State
is passing through a severe drought as a result of depletion of groundwater resources. Much of this
situation is a result of rampant encroachments of the spaces which are earmarked for public utility
purposes, including green areas, pasture lands and ponds etc. Unless serious steps are taken to remedy the
situation, the situation will become more serious than the present.

7. In these circumstances, this Court would be constrained to reiterate the guidelines which were
issued in Om Prakash Verma (supra) and to further direct the State to strengthen the procedure for
enforcement so as to secure the interest of the public.

8. Insofar as the two lists (Annexure-14 and 15) are concerned, we direct the Collector and
District Magistrate to cause a due verification of the facts which are set out in the writ petition. Where
proceedings are pending, they shall be concluded expeditiously. Where orders have been passed and are
awaiting enforcement, the district administration shall take necessary steps in accordance with law after
verifying that the orders continue to hold the field and have not been stayed or modified by any higher
forum.

9. The petition is, accordingly, disposed of. There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SHAMSHER BAHADUR SINGH, J.

Writ C No.- 59588 Of 2008

Ashok ...Petitioner
Versus
State Of U.P. & Anr. ...Respondents
5 All. Ashok Vs State Of U.P. & Anr.

1839
Counsel for the Petitioner:
Shri S.K. Singh

Counsel for the Respondents:
C.S.C.

Held -

Para 1: The Court heard the petitioner's counsel and reviewed the case records.
Para 2: The petitioner argued that although land was declared "surplus" under the Urban Land (Ceiling and
Regulation) Act, 1976, actual possession was never taken. Therefore, following the Repeal Act of 1999, the
state can no longer claim the land.
Para 3: The Court noted that original records produced in 2008 proved a Possession Certificate was issued on
October 19, 1987. Based on this, the Court had previously denied an interim order.
Para 4: The State's counter-affidavit confirmed that final statements and notifications (under Sections 9 and
10) were published in 1983 and 1985. A notice to surrender possession was issued in February 1987.
Para 5: The State provided a Dakhalnama (Possession Memo) dated October 19, 1987, showing that 4733.37
sq. meters of land was taken in the presence of witnesses.
Para 6: The petitioner countered that this was merely "paper possession" and not "actual physical
possession."
Para 7: The Court dismissed this argument as misconceived, citing established legal principles regarding what
constitutes "taking possession" by the State.
Paras 8-9: Citing Balwant Narayan Bhagde, the Court explained that the mode of taking possession depends
on the nature of the land. For fallow or vacant land, a spot inspection and declaration (even without the
owner's presence) are sufficient to constitute "actual possession."
Paras 10-12: Several precedents establish that possession in acquisition proceedings is legally accepted when
taken via a Memorandum or Panchnama. Any subsequent occupation by the original owner is considered
illegal.
Para 13: In Tamil Nadu Housing Board v. A. Viswam, the Court held that recording a Panchnama in the
presence of witnesses is one of the accepted modes of taking possession, as taking physical hold of every inch
of land is impossible.
Paras 14-17: Further rulings (Larsen & Toubro, Sita Ram Bhandar, etc.) affirm that a signed Panchnama
serves as sufficient evidence of vesting the land in the Government, regardless of whether the owner still
physically occupies it or if revenue mutations are delayed.
Para 18: The Court highlighted the Banda Development Authority case, which crystallized five principles:
No fixed rule for possession exists.
For vacant land, a Panchnama is sufficient.
For land with crops/buildings, notice and independent witnesses are required.
For large tracts, symbolic possession via documentation is enough.
Presumption of possession is higher if 80% compensation is paid and land is utilized.
Para 19: A Division Bench of the High Court previously upheld that endorsements by officials on authority
letters constitute valid possession by revenue authorities.
Para 20: The Court concluded that since possession was legally taken in 1987 (well before the 1999 Repeal
Act), the petitioner's claim that the land is "vacant" is rejected.
Paras 21-22: The writ petition was dismissed with costs of Rs. 10,000, and all interim orders were
vacated.

List of Citations

Balwant Narayan Bhagde Vs. M.D. Bhagwat and others, 1976 (1) SCC 700.
1840 INDIAN LAW REPORTS ALLAHABAD SERIES
General Manager, Telecommunication and another Vs. Dr. Madan Mohan Pradhan and others,
1995 Supp.(4) SCC 268.
State of Tamil Nadu and another Vs. Mahalakshmi Ammal and others, 1996 (7) SCC 269.
Balmokand Khatri Educational and Industrial Trust Vs. State of Punjab, 1996 (4) SCC 212.
Tamil Nadu Housing Board Vs. A. Viswam, 1996 (8) SCC 259.
Larsen and Toubro Ltd. Vs. State of Gujrat and others, 1998 (4) SCC 387.
P.K. Kalburqi Vs. State of Karnataka, 2005 (12) SCC 489.
Sita Ram Bhandar Society, New Delhi Vs. Lt. Governor, Government of N.C.T. Delhi and others,
2009 (10) SCC 501.
Brij Pal Bhargava and others Vs. State of U.P. and others, 2011 (5) SCC 413.
Banda Development Authority, Banda Vs. Moti Lal Agarwal and others, 2011 (5) SCC 394.
Jagdish and others Vs. State of U.P. and others, 2008 (5) ADJ 5.

(Delivered by Hon'ble Sudhir Agarwal, J.
&
Hon'ble Shamsher Bahadur Singh, J.)

1.Heard Sri Subhash Gosain, Advocate holding brief of Sri S.K. Singh, learned counsel for
the petitioner and perused the record.

2. Petitioner claims that though certain land of disputed premises was declared surplus
under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as
the "Act, 1976") but since possession thereof was not taken and in the meantime aforesaid Act,
1976 has been repealed by Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter
referred to as the "Act, 1999") which came into force on 22.03.1999, in view of Section 3 thereof
now possession of alleged surplus land cannot be taken by treating same as vacant land.

3. However, we find from record of this case that learned Standing Counsel produced
original record before Court on 26.11.2008 and Court after perusing same found that vide
possession certificate dated 19.10.1987 possession of excess/ surplus land was already taken. The
order passed by this Court on 26.11.2008, reproduced as under:

"Learned Standing Counsel prays for and is granted four weeks' time to file a
counter-affidavit. The petitioner will have thereafter two weeks' time to file rejoinder-affidavit.

Learned Standing Counsel has produced the original record before this Court.
After examining the same, we find that the notice under Section 10(3) was issued on 10.2.1987.
Thereafter, another Certificate dated 19.10.1987 was issued certifying that possession of the excess
land has already been taken. In view of the aforesaid, no case is made out for grant of any interim
order.

List after the Affidavits are exchanged."
5 All. Ashok Vs State Of U.P. & Anr.

1841
4. However, pursuant to direction given by this Court respondents have also filed a counter
affidavit sworn by Swami Nath Pathak, Deputy Collector, Varanasi and paras 5, 6 and 7 thereof are
reproduced hereat:

 "5. That final statement accordingly was prepared under Section 9 of the Act on
14.9.1983, which was followed by issuance of notification under Section 10(1) and 10(3) of the Act,
which were published in the official gazette on 31.8.1985 and 21.12.1985 respectively. A notice,
thereafter under Section 10(5) of the Act was prepared on 10.2.1987.

6. That, there is a Dakhalnama available on the record dated 19.10.1987 notifying
the area declared surplus that the possession of the excess vacant was taken by the State, a photo
stat copy of which is being annexed herewith and is marked as Annexure No. CA-2 to this counter
affidavit. The name of the State was, thereafter, mutated in the revenue record and the land was
transferred to Varanasi Development Authority i.e. before the Repeal of the Act.

7. That the petitioner has not impleaded the Varanasi Development Authority
which is managing the land in question, and, therefore, the writ petition suffers from non-joinder of
necessary party and is liabel to be dismissed on this ground alone."

5. Copy of possession certificate has also been filed as Annexure-2 to the counter affidavit
which shows that in presence of witnesses possession of surplus land measuring 4733.37 sq. Maters
was taken by respondents.

6. Learned counsel for the petitioner then contended that possession is only a paper
transaction and actual possession was not taken by respondents.

7. The submission is thoroughly misconceived. In the context of Land Acquisition Act,
1894 (hereinafter referred to as the "Act, 1894") the question as to when it can be said that actual
possession of land has been taken by State has been considered by Courts time and again.

8. In the chain of precedents we first come to the Supreme Court's authority in Balwant
Narayan Bhagde Vs. M.D. Bhagwat and others, 1976 (1) SCC 700. It is a three Judges
judgment. The majority view is the opinion expressed by Hon'ble Bhagwati, J for himself and
Hon'ble Gupta, J. While contrary view was expressed by Hon'ble Untwalia, J. His Lordship
Untwalia, J. Observed that taking possession means taking of possession on the spot. It is neither a
possession on paper nor symbolical possession. The Act is silent on the point as to what is the mode
of taking possession. Unless possession is taken by written agreement of party concerned, the mode
of taking possession obviously would be for the authority to go upon the land and to do some act
which would indicate that authority has taken possession on land. It may be in the form of
declaration by beat of drum or otherwise or by hanging a written declaration on the spot. Presence
of owner or occupant of land to effectuate taking of possession is not necessary. When possession
has been taken, owner or occupant of land is dispossessed. Once possession has been taken land
vests in Government.
1842 INDIAN LAW REPORTS ALLAHABAD SERIES
9. The majority judgment delivered by Hon'ble Bhagwati, J. Disagreeing with Hon'ble
Untwalia, J. Said that when State proceed to take possession of land acquired, it must take actual
possession of land since all interests on land are sought to be acquired by it. There can be no
question of taking symbolical possession in the sense understood by judicial decisions under the
Code of Civil Procedure (hereinafter referred to as the "CPC"). Nor would possession merely on
paper be enough. The Court further said:

 "What the Act contemplates as a necessary condition of vesting of the Land in the
Government is the taking of actual possession of the land. How such possession may be taken
would depend on the nature of the land. Such possession would have to be taken as the nature of
the land admits of. There can be no hard and fast rule laying down what act would be sufficient to
constitute taking of possession of land. We should not, therefore, be taken as laying down an
absolute and inviolable rule that merely going on the 'pot and making a declaration by beat of
drum or otherwise would be sufficient to constitute taking of possession of land in every case. But
here, in our opinion, since the land was laying fallow and there was no crop on it at the material
time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of
determining what part was waste and arable and should, therefore, be taken possession of and
determining its extent, was sufficient to constitute taking of possession. It appears that the
appellant was not present when this was done by the Tehsildar, but the presence of the owner or the
occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly
necessary as a matter of legal requirement that notice should be given to the owner or the occupant
of the land that possession would be taken at a particular time, though it may be desirable where
possible, to give such notice before possession is taken by the authorities, as that would eliminate
the possibility of any fraudulent or collusive transaction of taking of mere paper possession,
without the occupant or the owner ever coming to know of it."
(emphasis added)

10. In General Manager, Telecommunication and another Vs. Dr. Madan Mohan
Pradhan and others, 1995 Supp.(4) SCC 268 it was claimed on behalf of State that possession
was taken on 12.04.1976 and handed over to Union of India. With regard to mode and manner of
possession the Court said:

 "It is common knowledge that possession would always be taken under a memo
and handing over also would be under a memo. It is a recognized usual practice in all the
acquisition proceedings."

11.In State of Tamil Nadu and another Vs. Mahalakshmi Ammal and others, 1996(7)
SCC 269 the Court said:

 "Possession of the acquired land would be taken only by way of a memorandum,
Panchanama, which is a legally accepted norm. It would not be possible to take any physical
possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or
5 All. Ashok Vs State Of U.P. & Anr.

1843
unlawful possession which does not bind the Government nor vested under Section 16 divested in
the illegal occupant."

12. The question as to how physical possession of land is to be taken, then was considered
in Balmokand Khatri Educational and Industrial Trust Vs. State of Punjab, 1996(4) SCC 212,
wherein the Court said in para 4 of the judgment as under:

 "4. It is seen that the entire gamut of the acquisition proceedings stood completed
by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has
contended that the appellant still retained their possession. It is now well-settled legal position that
it is difficult to take physical possession of the land under compulsory acquisition. The normal
mode of taking possession is drafting the panchnama in the presence of panchas and taking
possession and giving delivery to the beneficiaries is the accepted mode of taking possession of
the land. Subsequent thereto, the retention of possession would tantamount only to illegal or
unlawful possession".
(emphasis added)

13. The majority opinion of Balwant Narayan Bhagde (supra) was considered in Tamil
Nadu Housing Board Vs. A. Viswam, 1996 (8) SCC 259 wherein also a dispute of actual
possession was raised. The Court relying on memorandum of Panchnama prepared by Land
Acquisition Officer for taking possession of acquired land and also the letter written by respondent
wherein he admitted title of respondent but sought for allotment of an alternative site, held that
there was no question of requesting for alternative site if according to respondents the title still
vested in him and has not been vested in the State by taking possession. Paras 9 and 10 of the
judgment relevant for our purpose is reproduced as under:

 "9. It is settled law by series of judgement of this Court that one of the accepted
modes of taking possession of the acquired land is recording of a memorandum or Panchanama by
the LAO in the presence of witnesses signed by him/them and that would constitute taking
possession of the land as it would be impossible to take physical possession of the acquired land. It
is common knowledge that in some cases the owner/interested person may not co-operate in taking
possession of the land.

10. It is seen that in a letter written by the respondent himself, admitting the title of
the Board to the land in the said survey number, he sought for allotment of alternative site. In other
words, unless possession is taken and he is divested of the title and the same is vested in the
appellant, he cannot make request to the appellant for providing him alternative site. It is not his
case that at that stage he was still continuing to have title to the land in dispute. The admission is
inconsistent with and incongruous to his interest. He was also aware that award was made and the
possession obviously should have been taken thereunder......."

14. The next authority is Larsen and Toubro Ltd. Vs. State of Gujrat and others, 1998
(4) SCC 387. Therein Court referred to Panchnama prepared by Deputy Collector showing that
1844 INDIAN LAW REPORTS ALLAHABAD SERIES
possession was taken and found it sufficient to hold that possession of land in question in that case
was taken as contemplated under Act, 1894.

15. In P.K. Kalburqi Vs. State of Karnataka, 2005(12) SCC 489, Court referred to the
observations of Hon'ble Bhagwati, J. In Balwant Narayan Bhagde (supra) and said, when there is
no crop or structure on the land only symbolic possession would be taken.

16. In Sita Ram Bhandar Society, New Delhi Vs. Lt. Governor, Government of N.C.T.
Delhi and others, 2009(10) SCC 501, Court after referring earlier decisions said that while taking
possession, symbolic and notional possession is not envisaged under the Act but the manner in
which possession is taken must of necessity depend upon the facts of each case. Where a large area
of land with a large number of owners is subject matter of possession, Court said, that, it would be
impossible for Collector or Revenue officials to enter each bigha or biswa and take possession
thereof. Pragmatic approach has to be adopted by Court. It further said:

"...one of the methods of taking possession and handing it over to the beneficiary
department is the recording of a Panchnama which can in itself constitute evidence of the fact that
possession had been taken and the land had vested absolutely in the Government."

17. Similarly in Brij Pal Bhargava and others Vs. State of U.P. and others, 2011(5)
SCC 413 accepting possession Court upheld the issue of possession on the basis of possession
receipts and said that mere fact that in revenue record there is no mutation or that erstwhile owner
actually is still occupying acquired land would make no difference.

18. After having a retrospect of earlier authorities, in Banda Development Authority,
Bana Vs. Moti Lal Agarwal and others, 2011(5) SCC 394, Court crystallized certain principles to
determine when possession taken would be held to be actual physical possession by authorities and
it reads as under:

 "37. The principles which can be culled out from the above noted judgments are:

(i) No hard and fast rule can be laid down as to what act would constitute taking of
possession of the acquired land.

(ii) If the acquired land is vacant, the act of the concerned State authority to go to
the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of
possession.

(iii) If crop is standing on the acquired land or building/structure exists, mere
going on the spot by the concerned authority will, by itself, be not sufficient for taking possession.
Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the
building/structure or the person who has cultivated the land and take possession in the presence of
independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner
5 All. Vinod Kumar Gupta Vs State Of U.P.

1845
of the land or building/structure may not lead to an inference that the possession of the acquired
land has not been taken.

(iv) If the acquisition is of a large tract of land, it may not be possible for the
acquiring/designated authority to take physical possession of each and every parcel of the land and
it will be sufficient that symbolic possession is taken by preparing appropriate document in the
presence of independent witnesses and getting their signatures on such document.

(v) If beneficiary of the acquisition is an agency/instrumentality of the State and
80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of
the acquired land has been utilised in furtherance of the particular public purpose, then the Court
may reasonably presume that possession of the acquired land has been taken."

19. In Jagdish and others Vs. State of U.P. and others, 2008(5) ADJ 5, (a Division
Bench judgment of this Court) wherein one of us (Hon'ble Sudhir Agarwal, J.) was a member,
Court referred to an authority letter of Special Land Acquisition Officer containing endorsement of
Executive Engineer taking possession. It was held that possession was taken by revenue authorities.

20. In view of above discussion we are of the view that possession of surplus land
measuring 4733.37 sq. Maters, which was so declared vide order dated 14.09.1983 and notification
under Section 10(1) and 10(3) was also issued on 31.08.1985 and 21.12.1985 and notice under
Section 10(5) of Act, 1976 was given on 10.02.1987, has been taken on 19.10.1987 vide possession
memo (Annexure-2 to the counter affidavit), hence contention of petitioner that after promulgation
of Act, 1999 now the land is vacant and cannot be taken by State is thoroughly misconceived and
rejected.

21. No other argument has been advanced. In view of above discussion, the writ petition
lacks merit. Dismissed with cost, which we quantify to Rs. 10,000/-.

22. Interim order, if any, stands vacated.
-----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.05.2016

BEFORE

THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Appeal No.- 153 Of 1994

Vinod Kumar Gupta ...Appellant
Versus
State Of U.P. ...Respondent