# Brij Kumar Singh v. State of U.P. & Ors

- **Citation:** (2020) 7 ILRA 318
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-11
- **Case number:** Writ C No. 39872 of 2018
- **Bench:** Bala Krishna Narayana, Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-kumar-singh-v-state-of-u-p-ors-45887
- **Pages:** 13

## Headnote

A. Civil Law - Urban Land (Ceiling and
Regulation) Act, 1976(Principal act) -
Urban land (Ceiling and Regulation
Repeal) Act 1999 - Section 3 ,Section 4,
Section 7, Section 8, Section 9, Section
10 - Possession of surplus land - - kind of
possession contemplated u/s 3 & 4 of the
Repeal Act, 1999 - actual physical possession
of the surplus land - not a mere paper
possession - neither having been delivered to
the Government voluntarily - nor taken
forcefully by the Government
- 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 - petitioner entitled to
the benefit of the Repeal Act, 1999.(Para28,35)

Petitioner's plot declared surplus under the
Urban Land (Ceiling and Regulation) Act,
1976 - interim order -petitioner will not be
dispossessed - meantime - Principal Act
repealed - Division Bench - abated the
proceedings
under
the
principal
Act
-
authorities found that petitioner is not in
physical possession - writ petition - disposed
of - no consequential steps were taken by the
respondents on the representation of the
petitioner . (Para-3)

HELD:- 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 land
in question on the date of the coming into
force of the Repeal Act, 1999 - direction
issued to the authorites to expunge the name
of respondent-State from the revenue record
and to restore that of the petitioner who is
the owner of the land in question. (Para37,39)

Petition allowed. (E-7)

List of cases cited: -

## Text

_Characters 0–39,993 of 40,967. This is a partial read: ask again with offset=39993 for what follows._

318 INDIAN LAW REPORTS ALLAHABAD SERIES
been
agreed
upon
in
the
family
settlement/compromise, which has also
been given effect to. The compromise is
not under challenge on any of the grounds
permitted
in
law.
The
effect
of
compromise, therefore, cannot be nullified
in the garb of proceedings initiated for
correction in records under Section 202 of
the Land Revenue Act, 1901.

18. Writ petition, accordingly, is
dismissed. Parties to bear their own costs.
----------
(2020)07ILR A318
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.06.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAVI NATH TILHARI, J.

Writ C No. 39872 of 2018

Brij Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bidhan Chandra Rai, Sri M.C. Chaturvedi

Counsel for the Respondents:
C.S.C., Sri Krishna Mohan Asthana, Sri
Satish Chaturvedi, Sri Mohanji Srivastava,
Mrs. S.Rathi

A. Civil Law - Urban Land (Ceiling and
Regulation) Act, 1976(Principal act) -
Urban land (Ceiling and Regulation
Repeal) Act 1999 - Section 3 ,Section 4,
Section 7, Section 8, Section 9, Section
10 - Possession of surplus land - - kind of
possession contemplated u/s 3 & 4 of the
Repeal Act, 1999 - actual physical possession
of the surplus land - not a mere paper
possession - neither having been delivered to
the Government voluntarily - nor taken
forcefully by the Government
- 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 - petitioner entitled to
the benefit of the Repeal Act, 1999.(Para28,35)

Petitioner's plot declared surplus under the
Urban Land (Ceiling and Regulation) Act,
1976 - interim order -petitioner will not be
dispossessed - meantime - Principal Act
repealed - Division Bench - abated the
proceedings
under
the
principal
Act
-
authorities found that petitioner is not in
physical possession - writ petition - disposed
of - no consequential steps were taken by the
respondents on the representation of the
petitioner . (Para-3)

HELD:- 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 land
in question on the date of the coming into
force of the Repeal Act, 1999 - direction
issued to the authorites to expunge the name
of respondent-State from the revenue record
and to restore that of the petitioner who is
the owner of the land in question. (Para37,39)

Petition allowed. (E-7)

List of cases cited: -

1. Devaki Nandan Prasad Vs St. of Bihar
(1983) Law Suit SC 129

2. St. of U.P. Vs Hari Ram (2013) 4 SCC 280

3. Lalla Vs. St. of U.P. (2014) 9 ADJ 524

(Delivered by Hon'ble Bala Krishna Narayana, J.)

1. Heard Sri B.C. Rai, learned counsel
for the petitioner, Sri M.C. Chaturvedi,
learned Additional Advocate General, U.P.
assisted by Sri Mohanji Srivastava, learned
7 All. Smt. Vimla Devi Vs. Commissioner Vindhyachal Division Mirzapur & Ors.
319
counsel for respondent nos. 1, 2 and 3 and
Mrs.
S.
Rathi,
learned
counsel
for
respondent no. 4.

2. This writ petition has been filed by
the petitioner with the following prayer to
:-

i. issue a writ of certiorari to quash
the impugned order dated 06.08.2018 as
contained in Annexure No. 17 passed by the
Principal Secretary, Avas Evam Sahari
Niyojan Anubhag-6, Lucknow/ Respondent
No. 1 and E-tender notice dated 11.10.2018
as contained in Annexure No. 19 issued by
the Moradabad Development Authority,
Moradabad/Respondent no. 4 inviting bid for
development of a residential colony over
Gata No. 02 (2A and 2B) situated at village-
Shahpur
Tigri,
Tehsil
and
District-
Moradabad;

ii. issue a writ, order or direction in
the nature of writ of mandamus directing the
Competent Authority, Urban Land Ceiling,
Moradabad to restore the entry of the name
of the petitioner in revenue records in respect
to Gata Nos. 2A (area 40523.93 sq. metres)
and 2B (area 2063.97 sq. metres), total area
42587.96 square metres situated in revenue
village- Shahpur, Tigri, Tehsil- Moradabad,
District- Moradabad;

iii. issue a writ, order or direction
in the nature of writ of mandamus
commanding the respondents not to interfere
in the actual physical possession of the
petitioner over the Gata Nos. 2A & 2B
situated in revenue village- Shahpur, Tigri,
Tehsil- Moradabad, District- Moradabad;

iv. issue such other and further
writ, order or direction which this Hon'ble
Court may deem fit and proper in the
circumstances of the case; and

v. award the cost of the writ
petition.

3. Briefly stated the facts of this case
are that the petitioner's plot namely Gata
Nos. 2A (area 40523.93 sq. metres) and 2B
(area 2063.97 sq. metres), total area
42587.96 square metres situated in revenue
village- Shahpur, Tigri, Tehsil- Moradabad,
District- Moradabad (hereinafter referred to
as the 'land in question') was declared
surplus under the Urban Land (Ceiling and
Regulation) Act, 1976, hereinafter referred
to as the 'principal Act'. He challenged the
proceeding by means of Writ Petition No.
19264 of 1993 wherein this Court on
7.6.1993 passed an interim order that the
petitioner will not be dispossessed from the
land
in
question.
Vide
order
dated
14.10.1993, the said interim order was
continued. In the meantime, the principal
Act was repealed. In view of the said fact, a
Division Bench of this Court vide its
judgement dated 21.9.2001 abated the
proceedings under the principal Act and in
view of the said fact, the writ petition was
disposed of. It appears that inspite of the
said judgement, no consequential steps
were taken by the respondents on the
representation of the petitioner. Therefore,
the petitioner preferred a Writ Petition No.
4085 of 2006 in which this Court found
that a short question was required to be
decided whether actual physical possession
was or was not taken in the proceedings
under the principal Act. Pursuant to the
order of Division Bench dated 23.1.2006, a
decision was taken by respondent no. 1 on
9.5.2007 wherein the authorities found that
the petitioner is not in physical possession.

4. Dissatisfied with the order dated
9.5.2007, the petitioner again approached
this Court by way of filing Writ Petition
No. 28150 of 2007. The said writ petition
320 INDIAN LAW REPORTS ALLAHABAD SERIES
was allowed with the following observation
:-

"Possession
on
paper
is
a
symbolic possession and word 'possession'
used in Clause (a) of Section (2) of Section
3 of the Act mean actual physical
possession
and
not
the
symbolic
possession.

After the repealing of the Urban
Land (Ceiling & Regulation Repeal) Act
1976 by Act No. 15 of 1999 Urban land
(Ceiling and Regulation Repeal) Act 1999
the petitioners are entitled to the benefit of
Section 3 of the Act No. 15 of 1999. The
petitioner's land shall not be treated to
have been declared as vacant land under
the repeal Act.

For the reasons recorded above,
the instant writ petition is allowed.

No orders as to cost."

5. The Moradabad Development
Authority aggrieved by the said order
preferred a Special Leave Petition No.
12283 of 2012 wherein initially status
quo order was passed. Later on, the
Hon'ble Supreme Court directed the
District Judge, Moradabad to submit a
report after inspection of the land in
question
regarding
the
physical
possession of the land in question. The
District Judge in its report found that the
petitioner is in physical and cultivated
possession. The District Judge submitted
a report. The relevant part of the report of
the District Judge reads as under:-

"Later on, A visit has also been
made at Gata No.2A and 2B measuring
42587.93 Sq. M. situated at village
Shahpur Tigri, District Moradabad. All
the aforesaid officers and Sri Brij Kumar
Singh were present there. In this gata
number, there is no development or
construction/residential colony. The total
land is lying vacant in the shape of
cultivated land and there is no crop
standing on the said disputed land as
shown in the map prepared by Amin as
Annexure No. 4."

6. The Supreme Court upon
considering the said report dismissed the
special leave petition No. 30659 of 2010
of the Moradabad Development Authority
with the following observations:-

"Be it noted, in the report, it has
been clearly stated that the plots in
respect of which possession has not been
taken over, the same shall remain in
possession of the persons who are
already in possession."

7. The aforesaid facts clearly
demonstrate that the findings recorded by
this Court in Writ Petition No. 28150 of
2007 quoted herein above had not been
set aside by the Supreme Court. The said
fact leaves no room for any doubt that the
petitioner is in possession over the land
in question. It appears that inspite of the
aforesaid
judgements
when
no
consequential steps were taken by the
respondents,
the
petitioner
again
approached this Court by means of a Writ
Petition No. 8789 of 2018. This Court
without expressing any opinion on merits
observed as under:-

"Accordingly,
we
direct
the
respondents No.1, 2 and 3 to consider the
application of the petitioner for recording
his name over the land in dispute in
accordance with law after hearing the
petitioner as well as the Moradabad
7 All. Smt. Vimla Devi Vs. Commissioner Vindhyachal Division Mirzapur & Ors.
321
Development Authority as expeditiously as
possible, preferably within a period of three
months."

8. In compliance of the said order the
respondent no.1, Principal Secretary, Awas
Evam Sahari Niyojan, Government of U.P.,
Lucknow, passed the impugned order dated
06.8.2018 referring the opinion of the D.G.C.
(Civil). In the said report, the Principal
Secretary, Awas Evam Sahari Niyojan,
Government of U.P., Lucknow, has held that
Moradabad Development Authority is in
possession of the land and he has referred
some documents.

9. It appears that the coordinate Bench
of this Court took note of the fact that the
Principal Secretary, Awas Evam Sahari
Niyojan, Government of U.P., Lucknow
while passing the impugned order dated
06.08.2018 had ignored the judgement of the
Hon'ble Supreme Court and this Court where
categorical findings were recorded that the
petitioner was in possession of the disputed
plot and had placed its conclusion on the
report of the D.G.C. and directed the
Principal Secretary, Awas Evam Sahari
Niyojan, Government of U.P., Lucknow to
file his personal affidavit.

10. The Moradabad Development
Authority filed Civil Appeal No. 3242 of
2019 arising out of SLP (C) No. 2900/2019
before the Hon'ble Apex Court challenging
the interim order dated 18.12.2018 which was
finally disposed of by the order of Hon'ble
Supreme Court passed on 27.03.2019 which
runs as hereunder :-

Leave granted.

1. The appellants are aggrieved by
the observations made in the interim order
passed by the High Court on 18.12.2018.

2. Mainly, according to Shri
Rakesh U. Upadhyay, learned counsel for the
appellants, the High Court ought not to have
observed "that the Principal Secretary, Awas
Evam Shahri Niyojan, Government of U.P.,
Lucknow, should not have ignored the
judgement of the Supreme Court and this
Court where clear finding has been recorded
regarding the possession of the petitioner".
According to the appellants this Court vide
order dated 04.01.2017 passed in SLP (C)
Nos.
30658-30659/2010
and
connected
matter recorded a specific finding about
possession i.e., whether it is with the
petitioner(s) or with the respondent(s). We
find that the submission of Shri Upadhyay in
this regard is correct.

3. Shri M.L. Lahoty, learned
counsel for the respondents pointed out that
there is reference to the possession being
with the respondents in the High Court's
order dated 19.08.2019. This however, is
countered by Shri Upadhyay by submitting
that the possession referred to in the High
Court's order is symbolic possession and
not actual possession. It is not necessary
for us to render any finding on possession,
particularly, since these appeals are only
against an interim order. We, however, feel
that the observations in the order of the
High Court were not necessary for the
purpose of the interim order and the matter
needs a final decision on the entire dispute
in Writ C No. 39872/2018, pending before
the High Court.

4. We accordingly, set aside the
impugned order and request the High Court
to dispose of Writ C No. 39872/2018 as
early as possible, preferably not later than
one year.

5. The appeals are disposed of
accordingly.
322 INDIAN LAW REPORTS ALLAHABAD SERIES

6.
Shri
M.L.
Lahoty
seeks
permission to withdraw Contempt Petition
No. 4646 of 2018 in view of the above
order.

7. Ordered accordingly.

8. In view of the order passed in
the above appeals, these appeals are also
disposed of.

11. We therefore, proceed to decide
this matter finally on merits in pursuance of
the direction issued by the Apex Court vide
order dated 27.03.2019.

12. It is urged by the learned counsel
for the petitioner that the Principal
Secretary, Awas Evam Sahari Niyojan,
Government of U.P., Lucknow, has tried to
over reach the order of the Supreme Court.
Once the matter was settled by this Court
against which S.L.P. was dismissed, the
Principal Secretary, Awas Evam Sahari
Niyojan, Government of U.P., Lucknow,
has no business to pass a contrary order. He
has referred a judgment of the Supreme
Court in the case of Devaki Nandan
Prasad Vs. State of Bihar reported in 1983
Law Suit (SC) 129. He further urged that in
fact the order of the Principal Secretary,
Awas Evam Sahari Niyojan, Government
of
U.P.,
Lucknow
is
contemptuous,
perverse and not warranted by any material
on record.

13. Per contra Sri M.C. Chaturvedi,
learned Additional Advocate General, U.P.
assisted by Sri Mohanji Srivastava, learned
counsel for respondent nos. 1, 2 and 3 and
Mrs.
S.
Rathi,
learned
counsel
for
respondent no. 4 made a feeble attempt to
defend the impugned order and submitted
that the material on record indicates that the
possession of the land in question was
transferred by the respondent nos. 1 to 3 to
respondent no. 4 and hence, the impugned
order which is based upon relevant
consideration and supported by cogent
reasons warrants no interference by this
Court. This writ petition lacks merit and is
liable to be dismissed.

14. We have heard learned counsel for
the parties and perused the material brought
on record including the original record
pertaining to the proceedings taken under
the principal Act in respect of the
petitioner's land which was produced
before us by the learned counsel appearing
for the respondent nos. 1 to 3.

15. The twin questions which arise for
our consideration in this writ petition interalia 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 ?

16. In order to examine the aforesaid
questions, it would be useful to reproduce
the provisions of the principal Act 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
7 All. Smt. Vimla Devi Vs. Commissioner Vindhyachal Division Mirzapur & Ors.
323
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,--

(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
324 INDIAN LAW REPORTS ALLAHABAD SERIES
incapacitated from attending to their affairs,
by any other person competent to 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 subsection, "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 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
7 All. Smt. Vimla Devi Vs. Commissioner Vindhyachal Division Mirzapur & Ors.
325
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.

(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 subsection (3) of section 8 on the person
concerned and where such vacant land is
held under a lease, or a mortgage, or a hirepurchase 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
326 INDIAN LAW REPORTS ALLAHABAD SERIES

(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 subsection (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 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 subsection (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 subsection (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 subsection (1) of section 11 and in sections
14 and 23, "State Government", in
relation to--

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

(b) any vacant land owned by any
State Government and situated in the Union
territory or within the local limits of a
cantonment declared as such under section
3 of the Cantonments Act, 1924 (2 of
1924), means that State Government.

Section 3 and 4 of the Repeal Act,
1999 are as hereunder :-
7 All. Smt. Vimla Devi Vs. Commissioner Vindhyachal Division Mirzapur & Ors.
327

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 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
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.

17. From the 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 other land on which
there was a building, whether or not with a
dwelling unit therein, held by him.

18. 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.

19. 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.

20. 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.

21. Section 9 provides that after
disposal of the objections, if any, received
under sub-section (4) of Section 8, the
328 INDIAN LAW REPORTS ALLAHABAD SERIES
competent authority shall prepare the final
statement.

22. 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.

23. 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).

24. 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 subsection (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 have been acquired by the State
Government. Such land shall be deemed to
have
vested
absolutely
in
the
State
Government free from all encumbrances.

25. 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.

26. 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.

27. 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.

28.

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.

29. From the perusal of the original
record, notification u/s 10 (3) of the
principal Act in respect of the land in
question was published on 28.02.1986
while notice u/s 10 (5) of the principal Act
was issued on 25.05.1990 and published in
the official gazette on 28.07.1990. There is
also a possession memo dated 13.11.1992,
copy whereof has been brought on record
as Annexure No. C.A.-4 to the counter
affidavit filed on behalf of the respondent
no. 4 in the writ petition, by which the
possession of the land in question was
7 All. Smt. Vimla Devi Vs. Commissioner Vindhyachal Division Mirzapur & Ors.
329
purported to have been taken by the
respondent no. 2. The possession memo
neither contains name of the person from
whom respondent no. 2 had obtained the
actual physical possession of the land in
question nor the said document has been
signed by the petitioner.

30. It is also not the case of the
respondents that after publication of the
notice u/s 10 (5) of the principal Act in the
official gazette, the petitioner had delivered
the physical possession of his surplus land to
the respondent nos. 1 to 3.

31. We have very carefully scanned the
original record and we are constrained to
observe that there is no material on record
indicating that forcible possession of the land
in question was taken by the respondents
from the petitioner u/s 10 (6) of the principal
Act. The possession memo dated 13.04.1992
appears to be a sham document and there is
nothing which may persuade us into holding
that either the possession of the land in
question was peacefully delivered by the
petitioner to the respondents after the
publication of the notice u/s 10 (5) of the
principal Act or the respondent no. 2 had
taken forcible possession of the land in
question from the petitioner.

32. Thus, we have no hesitation in
holding that the petitioner was in possession
of the land in question on the date on which
the Repeal Act, 1999 came into force. Even
otherwise the Hon'ble Apex Court as well as
this Court have recorded categorical findings
of fact in their judgements that the possession
of the land in question was with the
petitioner.

33. 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 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)

34. There is another document on
record showing that the State Government
had allegedly delivered the possession of
the land in question to the respondent no. 4
on 30.03.1993, copy whereof has been
brought on record as Annexure No. C.A.- 5
to the counter affidavit filed on behalf of
respondent no. 4 in the writ petition.

35. We are of the considered view that
the actual physical possession of the
surplus land neither having been delivered
to the Government voluntarily nor taken
forcefully by the Government, any transfer
of possession of the surplus land by the
Government in favour of respondent no. 4
on paper, in pursuance of the Government
orders as mentioned therein, is of no
relevance or consequence. Such a paper
transaction in favour of respondent no. 4 by
the State Government to defeat the rights of
the petitioner is not recognized under law.
330 INDIAN LAW REPORTS ALLAHABAD SERIES

36. In Lalla Vs. State of U.P.
reported in 2014 (9) ADJ 524, this Court in
paragraph 11 of the judgement has held as
hereunder :-

"The law does not contemplate
transfer of possession by Government
orders. It needs to be clarified that the land
for the purposes of management would vest
in
the
local
authorities/development
authorities only when the State came in
valid possession over land, pursuant to
lawful proceedings under Section 10 (5) or
10
(6)
of
the
Act.
The
local
authorities/development authorities merely
steps into shoes of the State Government. If
the
State
Government
through
the
Collector/District Magistrate has not taken
possession over the land in question, as
contemplated by law, the transfer of
possession
in
favour
of
the
local
authorities/development authorities cannot
be presumed under Government order. If
the possession of land has not been taken
by the State, as per the procedure already
determined by the Apex Court, the local
authorities//development authorities cannot
claim independent right over the land
merely on the strength of the Government
order."

37. Thus, we find 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 land in question on the
date of the coming into force of the Repeal
Act, 1999. This writ petition deserves to be
allowed.

38. Accordingly, the writ petition is
allowed.

39. The impugned order dated
06.08.2018 is hereby quashed. A further
direction is issued to the respondents to
expunge the name of respondent-State from
the revenue record and to restore that of the
petitioner who is the owner of the land in
question.
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(2020)07ILR A330
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.01.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAVI NATH TILHARI, J.

Writ C No. 40425 of 2018

K. Ragupathi ...Petitioner
Versus
Bachchu Singh & Ors. ...Respondents