# Atma Prasad Shukla v. State of U.P. & Anr

- **Citation:** (2023) 6 ILRA 968
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-02
- **Case number:** Writ-C No. 4874 of 2023
- **Bench:** Surya Prakash Kesarwani, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/atma-prasad-shukla-v-state-of-u-p-anr-50484
- **Pages:** 5

## Headnote

Civil Law - The Urban Land Ceiling and
Regulation Act, 1976- Section 8(4) -
petitioner's
land
measuring
19349.75
square
metres-declared
surplus-under
notice under section 8(3) of the Act- order
under -notifications issued under Sections
10(1)
and
10(3)
of
the
Act-notice
published under Section 10(5) of the Act-
6 All. Atma Prasad Shukla Vs. State of U.P. & Anr.
969
actual physical possession of the declared
surplus land was never taken-no evidence
regarding initiation of proceedings under
Section 10(6) of the Act-no compensation
was paid-proceedings under section 10(3)
of the Act-not saved by Section 3 of the
Repealing Act, 1999-attempt of the
respondent St. to mutate its name is
illegal-petition
allowed-
respondents
directed to restore the name of the
petitioner in revenue records. (Paras 8
and 10)

HELD:
Since neither the respondents have taken actual
physical possession of the surplus declared land
nor have paid any compensation in terms of
Section 10(3) read with Section 11 of the Act,
1976, therefore, even the proceedings under
Section 10(3) of the Act, 1976 is not saved by
saving clause contained in Section 3 of the
Repealing Act, 1999. Since the respondents
have neither paid any compensation in terms of
Section 10(3) read with Section 11 of the Act,
1976 nor have taken actual and physical
possession of the surplus declared land,
therefore, the entire proceedings under the Act,
1976 with respect to the surplus declared land
in question stood abated in terms of the Section
4 of the Repealing Act, 1999. The attempt of
the respondents for mutation of name of St. in
the khatauni of Fasli Year 1427-1432 by letter
dated 20.09.2021 filed as Annexure-CA-9 to the
counter affidavit, is wholly without authority of
law and illegal. (Para 10)

Petition allowed. (E-14)

## Text

968 INDIAN LAW REPORTS ALLAHABAD SERIES
Court under Chapter VIII Rule 5 of the
Rules of the Court in relation to an order
passed
by
a
Contempt
Judge,
are
concerned. Midnapore Peoples' Coop.
Bank Ltd. (supra) still holds the field,
according to which in case learned
Contempt Judge decides an issue relating
to merits of the dispute between the parties,
such judgment will be termed to be a
judgment rendered by the learned Single
Judge while exercising his jurisdiction
under Article 226 of the Constitution of
India and as such special appeal in such a
situation would be maintainable."

32. While applying the above noted
judgment in the facts of the present case,
now this Court has to bestow its anxious
consideration as to whether the present
intra-court appeal is maintainable against
the judgment and order of the learned
Single Judge while declining to initiate
contempt proceedings against the opposite
parties.

33. As noticed above, the Hon'ble
Apex Court and this Court has consistently
held that an intra-court appeal is not
maintainable against the order of the
learned Single Judge exercising contempt
jurisdiction in a contingency, when the
contempt
proceedings
are
not
being
initiated. The reliance placed upon the
judgment in the case of Durga Nagpal
(supra) is misconceived and misplaced as
in the said case, the Hon'ble Judges while
exercising
appellate
jurisdiction
were
confronted with the situation where the
contempt court reviewed its own order after
entertaining miscellaneous application for
modification of the final judgment. The
Division Bench opined that when accused
are discharged and proceedings are closed,
miscellaneous application for modification
is not maintainable. In the said perspective,
the Special Appeal was held to be
maintainable. Since the present case
originates from a judgment and order of the
contempt court declining to exercise
contempt
jurisdiction,
thus,
the
said
judgment is of no aid to the appellants.

35. Accordingly, we are of the firm
opinion that the present intra-court appeal
against the judgment and order of the
learned Single Judge dated 17.03.2023
declining to initiate contempt proceedings
is not maintainable under Chapter VIII
Rule 5 of the Rules of the Court.

36. Accordingly, the intra-court
appeal is dismissed as not maintainable.
----------
(2023) 6 ILRA 968
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Writ-C No. 4874 of 2023

Atma Prasad Shukla ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Pandey, Sri Sushil Kumar Pal

Counsel for the Respondents:
C.S.C.

Civil Law - The Urban Land Ceiling and
Regulation Act, 1976- Section 8(4) -
petitioner's
land
measuring
19349.75
square
metres-declared
surplus-under
notice under section 8(3) of the Act- order
under -notifications issued under Sections
10(1)
and
10(3)
of
the
Act-notice
published under Section 10(5) of the Act-
6 All. Atma Prasad Shukla Vs. State of U.P. & Anr.
969
actual physical possession of the declared
surplus land was never taken-no evidence
regarding initiation of proceedings under
Section 10(6) of the Act-no compensation
was paid-proceedings under section 10(3)
of the Act-not saved by Section 3 of the
Repealing Act, 1999-attempt of the
respondent St. to mutate its name is
illegal-petition
allowed-
respondents
directed to restore the name of the
petitioner in revenue records. (Paras 8
and 10)

HELD:
Since neither the respondents have taken actual
physical possession of the surplus declared land
nor have paid any compensation in terms of
Section 10(3) read with Section 11 of the Act,
1976, therefore, even the proceedings under
Section 10(3) of the Act, 1976 is not saved by
saving clause contained in Section 3 of the
Repealing Act, 1999. Since the respondents
have neither paid any compensation in terms of
Section 10(3) read with Section 11 of the Act,
1976 nor have taken actual and physical
possession of the surplus declared land,
therefore, the entire proceedings under the Act,
1976 with respect to the surplus declared land
in question stood abated in terms of the Section
4 of the Repealing Act, 1999. The attempt of
the respondents for mutation of name of St. in
the khatauni of Fasli Year 1427-1432 by letter
dated 20.09.2021 filed as Annexure-CA-9 to the
counter affidavit, is wholly without authority of
law and illegal. (Para 10)

Petition allowed. (E-14)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J. & Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Sushil Kumar Pal
holding brief of Sri Sanjay Pandey, learned
counsel for the petitioner and Sri Rajiv
Gupta, learned Additional Chief Standing
Counsel for the State-respondents.

2. This writ petition has been filed
praying for the following relief:

"a. Issue a writ, order or direction in
the nature of mandamus, directing and
commanding the respondents not to take
actual and physical possession from the
petitioner.

b. Issue a writ, order or direction in
the nature of mandamus, directing and
commanding the respondents to release the
surplus land of the petitioner from ceiling
under the Repeal Act 1999 and reregistered the name of the petitioner over
the revenue records as well as decide the
application dated 10.10.2 022 of the
petitioner."

Facts:-

3. Briefly stated facts of the present
case are that the father of the petitioner
namely Sri Devi Prasad Shukla owned
various khasra plots of villages Singhpur,
Mugdarpur and Khajuhi, Pargana Shivpur,
Tehsil Sadar, District Varanasi, out of
which land measuring 19349.75 square
meters was declared surplus under the
provisions of the Urban Land Ceiling and
Regulation Act, 1976 (hereinafter referred
to as 'the Act 1976') in Urban Ceiling Case
No.600/473/652/5798/83-84 (State of U.P.
vs. Devi Prasad Shukla). A notice dated
12.09.1985 under Section 8(3) of the Act,
1976 was issued which was served upon
the aforesaid Devi Prasad Shukla on
13.10.1985. In paragraph-5 of the counter
affidavit, it has been stated that objections
were filed by the aforesaid Devi Prasad
Shukla and thereafter, an order under
Section 8(4) of the Act was passed on
17.11.1989
whereby
19349.75
square
meters land was declared surplus. In
paragraphs-6 and 7 of the counter affidavit,
it has been stated that a notice under
Section 9 of the Act, 1976 dated
22.02.1994
was
issued.
Thereafter,
notification
dated
22.02.1997
and
970 INDIAN LAW REPORTS ALLAHABAD SERIES
22.08.1998 were issued under Section
10(1) and Section 10(3) of the Act, 1976,
which was published in the Government
Gazette. A notice under Section 10(5) of
the Act, 1976 was allegedly issued on
23.12.1998. In paragraphs-8 and 9 of the
counter affidavit, the respondents have
stated as under:

"8. That further it is submitted here
that with regard to the land declare surplus
for recording the name of the State
Government upon the same and undated
parwana/order was issued. A true Photostat
copy of undated parwana/order is being
annexed herewith and marked as Annexure
No. CA-7 to this affidavit. Further, it is
submitted here that for physical verification
and identification of the land declared
surplus, a letter was sent to the Secretary,
Varanasi Development Authority, Varanasi
on 28.03.2000 and the present matter is
mentioned at serial no. 547 in the list
annexed with the aforesaid letter. A true
Photostat copy of letter dated 28.03.2000
are being annexed herewith and marked as
Annexure No. CA-8 to this affidavit.

9. That it is also submitted here that in
furtherance of the earlier order/parwana
since the name of the State was not mutated
in the revenue records and as such a
reminder letter dated 20.09.2021 was sent
to Tehsildar Sadar, Varanasi, upon the
basis of which in the Khatauni of Fasli year
1427-1432, the name of the State was
mutated in the revenue record. A true
Photostat copy of letter dated 20.09.2021
along with Khatauni of Fasli year 14271432 are
being
collectively
annexed
herewith and marked as Annexure No.
CA-9 to this affidavit."

4. Since the respondents have
attempted to mutate the name of the State
over the aforesaid land in Fasli Year 14271432 vide letter dated 20.09.2021 and
further
attempted
to
dispossess
the
petitioner, therefore, the petitioner has filed
the present writ petition.

Submissions:

5.

Learned
counsel
for
the
petitioner submits that no notice under
Section 8(4) or Section 10(5) was ever
received by the father of the petitioner. He
further submits that petitioner or his father
neither ever surrendered the possession of
the land in question to the respondents
pursuant to the alleged notice under Section
10(5) of the Act, 1976 dated 23.12.1998
nor the actual physical possession was ever
taken by the respondents. He further
submits that no proceeding under Section
10(6) of the Act, 1976 was initiated and the
petitioner continues to be in possession of
the disputed land. He submits that even as
per own averments of the respondents in
their counter affidavit, actual and physical
possession of the land in question was
never taken and much after the enactment
of the Urban Land (Ceiling and Regulation)
Repeal Act, 1999 (hereinafter referred to as
'the Repealing Act, 1999'), the respondent
wrote a letter dated 28.03.2000 for
verification and identification of the land
declared surplus. Thus, own averments of
the respondents in paragraph-8 of the
counter affidavit itself leaves no manner of
doubt that the respondents never took
actual physical possession of the disputed
land and by Repealing Act, 1999, entire
proceedings under the Act, 1976, stood
abated.

6.

Learned
Additional
Chief
Standing counsel supports the action of
the State-respondents.

Discussion and Findings:-
6 All. Atma Prasad Shukla Vs. State of U.P. & Anr.
971

7. We have carefully considered the
submissions of the learned counsels for the
parties and perused the record of the writ
petition.

8. We find that there is no whisper in
the counter affidavit that actual and
physical possession of the alleged surplus
declared land was ever taken by the Staterespondents prior to coming into fore of the
Repealing Act, 1999. On the contrary, a
clear
averment
has
been
made
in
paragraph-8 of the counter affidavit that a
letter dated 28.03.2000 was written to the
Secretary, Varanasi Development Authority,
Varanasi for physical verification and
identification of the land declared surplus.
Thus, as on 28.03.2000, the respondents
have not even identified the surplus
declared land. There is nothing on record to
show that actual and physical possession of
the surplus declared land was ever
surrendered by the owner namely Devi
Prasad Shukla nor there is any evidence to
show that proceeding under Section 10(6)
of the Act, 1976 was initiated and actual
physical possession of the surplus land was
taken. Thus as per own averments of the
respondents in paragraph-8 of the counter
affidavit, it is evident that the Staterespondents have never taken physical
possession of the surplus declared land in
question and the petitioner continued in
physical possession of the said land. Even
the name of the State was not mutated prior
to the Repealing Act, 1999. It is only in the
year 2021, i.e. after about 22 years that the
respondents attempted to get the name of
the State mutated in the khatauni of Fasli
Year 1427-1432. After the death of Devi
Prasad Shukla, the name of his heirs, i.e.
the petitioner and others were mutated in
khatauni
and
the
petitioner's
name
continued in khatauni till the State's name
was attempted to be mutated in khatauni of
Fasli Year 1427-1432 on 20.09.2021. The
respondents have also not stated in the
counter affidavit that any amount of
compensation was paid to the petitioner
after notification under Section 10(3) of the
Act, 1976.

9. Sections 3 and 4 of the Repealing
Act, 1999 provides as under:

"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
by 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 therunder ,
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 subsection (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
972 INDIAN LAW REPORTS ALLAHABAD SERIES
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 insofar 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."

10. Since neither the respondents have
taken actual physical possession of the
surplus declared land nor have paid any
compensation in terms of Section 10(3)
read with Section 11 of the Act, 1976,
therefore, even the proceedings under
Section 10(3) of the Act, 1976 is not saved
by saving clause contained in Section 3 of
the Repealing Act, 1999. Since the
respondents
have
neither
paid
any
compensation in terms of Section 10(3)
read with Section 11 of the Act, 1976 nor
have taken actual and physical possession
of the surplus declared land, therefore, the
entire proceedings under the Act, 1976 with
respect to the surplus declared land in
question stood abated in terms of the
Section 4 of the Repealing Act, 1999. The
attempt of the respondents for mutation of
name of State in the khatauni of Fasli Year
1427-1432 by letter dated 20.09.2021 filed
as Annexure-CA-9 to the counter affidavit,
is wholly without authority of law and
illegal.

11. For all the reasons aforestated, the
writ petition is allowed. The respondents
are directed to restore the name of the
petitioner in the Revenue Records i.e.
khatauni and khasra and not to interfere
with his occupation, use and enjoyment of
the land in question.
----------
(2023) 6 ILRA 972
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2023

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL J.
THE HON'BLE VIKAS BUDHWAR, J.

Special Appeal Defective No. 172 of 2023
alongwith
Special Appeal Defective No. 192 of 2023
alongwith
Special Appeal Defective No. 249 of 2023

State of U.P. & Ors. ...Appellants
Versus
Surendra Singh & Anr. ...Respondents

Counsel for the Appellants:
C.S.C.

Counsel for the Respondents:
Sri Chandra Shekhar Singh, Sri V.K. Singh
(Sr. Advocate)

Civil Law - Service Law- The U.P. St. Aided
Educational
Institution
Employees
Contributory Provident Fund, Insurance
Pension Rules, 1964 - teachers-learned
single judge's direction under challenge-
ad hoc services to be included for
computation of pension - after their
regularisation in service- the U.P. St.
Aided Educational Institution Employees
Contributory Provident Fund, Insurance
Pension Rules, 1964- Amendment Act
No.7/2016 w.e.f. 22.03.2016 in the U.P.
Secondary Education Services Selection
Board Act, 1982- services of petitioners
stood regularised- Section 33 G of the Act-
Rules 18, 19, 21, 34- no distinction
between confirmation and regularisation-
procedure properly followed- no infirmity
in the judgement rendered by single
judge- petitioner entitled to pension-