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

- **Citation:** (2020) 9 ILRA 724
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-09-12
- **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-46072
- **Pages:** 13

## Headnote

Law
-Urban
Land
(Ceiling
and
Regulation) Act,1976 - Urban Land (Ceiling
and Regulation) Repeal Act - Section 3,
Section 4 - Land Ceiling - Actual physical
possession - possession contemplated u/s 3
& 4 of the Repeal Act, 1999, is actual
possession of surplus land & not a mere
paper possession - If on the date of the
coming into force of the Repeal Act, 1999,
actual physical possession of surplus land
with land holder - entitled to the benefit of
the Repeal Act, 1999 (Para 29)

Held - On the date of the coming into force of
the Repeal Act, 1999, actual physical possession
of the land declared surplus was with the
petitioner - actual physical possession of the
surplus
land
neither
delivered
to
the
Government voluntarily nor taken forcefully by
the Government in the proceedings under the
Principal Act - transfer of possession of the
surplus land by the Government in favour of
respondent no. 4 on paper, of no consequence -
petitioner entitled to the benefit of the Repeal
Act, 1999 - Direction issued to expunge name of
State from the revenue record and restore that
of the petitioner who is the owner of the land
(Para 35)

Allowed. (E-5)

List of Case cited :-

## Text

_Characters 0–39,996 of 43,471. This is a partial read: ask again with offset=39996 for what follows._

724 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The reference in Workman of
Bijlibari Tea Estate was in the following
terms (quoted verbatim from the report in
Workman of Bijlibari Tea Estate):

"(a) Whether the management of
Bijlibari T.E., Hoogrijan, PO-Hoogrijan, Dist.
Dibrugarh is justified in dismissing Sri Sankar
Dutta, Hazira, Mohurrer from service or not?

(b) It not, is he entitled to
reinstatement with full back wages or any
other relief in lieu thereof?"

21. In Workman of Bijlibari Tea
Estate, the Gauhati High Court held the
dismissal of the workman bad on a
reference about dismissal from service on
ground that the charges were based on a
transfer order, which was illegal. This is
precisely the workman's case here. This
Court does not wish to say at all whether
the order of transfer is valid or invalid.

22. Mr. Deeptiman Singh has attempted
to show that the Certified Standing Orders of
the Company do make provision for an interState transfer. Mr. Shekhar Srivastava, on the
other hand, submits that the provisions there
do not warrant a transfer outside the State.
Other issues have also been attempted to be
raised by the learned Counsel. This Court is
not inclined to go into those matters in the
present petition as in the opinion of this Court,
this matter must go back to the Labour Court
for a wholesome determination of the
reference. The Labour Court would examine
the validity of the transfer order, first in
sequence, and then proceed to determine the
validity of the order of dismissal referred. The
validity of the order of dismissal referred and
the validity of the order of transfer cannot be
separated.
It
requires
a
wholesome
determination.

23. In the result, the impugned award
is liable to be quashed, as also the order
separately made, disposing of the point
regarding
validity
of
the
inquiry
proceedings, though the said order dated
12.09.2017 is not formally challenged by
the employers. That order is patently illegal
and cannot be permitted to survive.

24. In the result, this writ petition is
allowed in part. The impugned award dated
27.07.2018
(published
on
06.09.2018)
passed by the Presiding Officer, Labour
Court, NOIDA, Gautam Budh Nagar in
Adjudication Case no.33 of 2018 and the
order dated 12.09.2017 passed by the
Labour Court in the Adjudication Case
aforesaid, are hereby quashed. Reference
dated 08.07.2016 is upheld. The Labour
Court shall proceed to redetermine the
reference in accordance with law and
endeavour to decide the same within a
period of six months next, after hearing both
parties and bearing in mind guidance in this
judgment. It is further ordered that out of the
sum of Rs.50,000/- deposited by the
employers with the Labour Court in
compliance with the interim order dated
27.11.2018, the sum of Rs.25,000/- paid to
the workman, shall not be recovered,
whereas the balance of Rs.25,000/-, invested
with whatever Nationalized Bank, shall be
forthwith withdrawn, together with accrued
interest and remitted to the employers. There
shall be no order as to costs.
----------
(2020)09ILR A724
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 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
9 All. Brij Kumar Singh Vs. State of U.P. & Ors.
725
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bidhan Chandra Rai

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

Civil
Law
-Urban
Land
(Ceiling
and
Regulation) Act,1976 - Urban Land (Ceiling
and Regulation) Repeal Act - Section 3,
Section 4 - Land Ceiling - Actual physical
possession - possession contemplated u/s 3
& 4 of the Repeal Act, 1999, is actual
possession of surplus land & not a mere
paper possession - If on the date of the
coming into force of the Repeal Act, 1999,
actual physical possession of surplus land
with land holder - entitled to the benefit of
the Repeal Act, 1999 (Para 29)

Held - On the date of the coming into force of
the Repeal Act, 1999, actual physical possession
of the land declared surplus was with the
petitioner - actual physical possession of the
surplus
land
neither
delivered
to
the
Government voluntarily nor taken forcefully by
the Government in the proceedings under the
Principal Act - transfer of possession of the
surplus land by the Government in favour of
respondent no. 4 on paper, of no consequence -
petitioner entitled to the benefit of the Repeal
Act, 1999 - Direction issued to expunge name of
State from the revenue record and restore that
of the petitioner who is the owner of the land
(Para 35)

Allowed. (E-5)

List of Case cited :-

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

(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
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
726 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."
9 All. Brij Kumar Singh Vs. State of U.P. & Ors.
727

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
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
728 INDIAN LAW REPORTS ALLAHABAD SERIES
possession of the petitioner". According to
the appellants this Court vide order dated
04.01.2017 passed in SLP (C) Nos. 3065830659/2010 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.

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
9 All. Brij Kumar Singh Vs. State of U.P. & Ors.
729
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
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 subsection (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.
730 INDIAN LAW REPORTS ALLAHABAD SERIES

(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
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
9 All. Brij Kumar Singh Vs. State of U.P. & Ors.
731
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.

(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

(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
732 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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.

17. 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;
9 All. Brij Kumar Singh Vs. State of U.P. & Ors.
733

(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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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).

25. Section 10 (3) provides that the
competent authority concerned may, by
notification published in the Official
Gazette of the State concerned, anytime
734 INDIAN LAW REPORTS ALLAHABAD SERIES
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 have been
acquired by the State Government. Such
land shall be deemed to have vested
absolutely in the State Government free
from all encumbrances.

26. 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.

27. 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.

28. 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.

29.

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.

30. 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
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.

31. 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.

32. 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
9 All. Brij Kumar Singh Vs. State of U.P. & Ors.
735
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.

33. 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.

34. 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)

35. 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.

36. 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.

37. 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.