# Gayur & Anr v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1710
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-20
- **Case number:** Writ C No. 31072 of 2009
- **Bench:** Pradeep Kumar Singh Baghel, Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gayur-anr-v-state-of-u-p-ors-44660
- **Pages:** 23

## Headnote

Act, 1976 - Section 3, 4 and Section
10(3) - if after notification u/s 10(3), the
land is vested in the State Government,
but possession not taken, the entire
proceeding stands lapsed.

Held-: If after the notification under subsection (3) of Section 10 of the Act, 1976 the
land is vested in the State Government but the
possession has not been taken by the State
Government or an officer nominated by the
State Government or the competent authority,
then in that event the proceedings shall be
lapsed. However, the compensation paid to the
land owner shall be got refunded. (Para 36)

B. Urban Land (Ceiling and Regulation)
Act, 1976 - Section 10 (5) & 10 (6) - In
any view of the matter, if the possession
has not been taken in terms of Sections
10(5)
and
10(6)
of
the
Act,
the
petitioners are entitled for the benefit
under Sections 3 and 4 of the Repeal Act.
We find that the ceiling proceeding stood
lapsed and the petitioners are entitled to
land in question which has been declared
surplus. If the claim of the Saharanpur
Development Authority that it has raised
construction over the land in question is
correct,
it
would
be
open
to
the
petitioners to take recourse to such
remedy which is available under the law.
 (Para 45)

Writ Petition allowed (E-9)

List of Cases Cited: -

## Text

_Characters 0–39,913 of 75,880. This is a partial read: ask again with offset=39913 for what follows._

1710 INDIAN LAW REPORTS ALLAHABAD SERIES

30. The writ petition is devoid of
merits and is accordingly dismissed.
----------

(2019)10ILR A 1710

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2019

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 31072 of 2009

Gayur & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Gaurav Sisodia, Sri Madhusudan
Dikshit.

Counsel for the Respondents:
C.S.C., Sri Brijesh Ojha, Sri P.K. Singh.

A. Urban Land (Ceiling and Regulation)
Act, 1976 - Section 3, 4 and Section
10(3) - if after notification u/s 10(3), the
land is vested in the State Government,
but possession not taken, the entire
proceeding stands lapsed.

Held-: If after the notification under subsection (3) of Section 10 of the Act, 1976 the
land is vested in the State Government but the
possession has not been taken by the State
Government or an officer nominated by the
State Government or the competent authority,
then in that event the proceedings shall be
lapsed. However, the compensation paid to the
land owner shall be got refunded. (Para 36)

B. Urban Land (Ceiling and Regulation)
Act, 1976 - Section 10 (5) & 10 (6) - In
any view of the matter, if the possession
has not been taken in terms of Sections
10(5)
and
10(6)
of
the
Act,
the
petitioners are entitled for the benefit
under Sections 3 and 4 of the Repeal Act.
We find that the ceiling proceeding stood
lapsed and the petitioners are entitled to
land in question which has been declared
surplus. If the claim of the Saharanpur
Development Authority that it has raised
construction over the land in question is
correct,
it
would
be
open
to
the
petitioners to take recourse to such
remedy which is available under the law.
 (Para 45)

Writ Petition allowed (E-9)

List of Cases Cited: -

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

2. State of U.P. and another v. Vinod Kumar
Tripathi and others, (2013) 4 SCC 280

3. St. of U.P. & anr. Vs Nek Singh,2010 Law
Suit (All) 3581 2010 (81) AllLR 456

4. Ram Chandra Pandey Vs St. of U.P. & ors.,
2010 (82) ALR 136

5. Ehsan Vs St. of U.P. & anr., Writ-C No.
21009 of 2012, decided on 08.10.2018

6. Lalji Vs St. of U.P. & ors., 2018 LawSuit (All)
1276: 2018 (5) ADJ 566

7. Yasin & ors. Vs St. of U.P. & ors., 2014 (4)
ADJ 305 (DB)

8. St. of Assam Vs Bhaskar Jyoti Sarma & ors.,
(2015) 5 SCC 321

9. St. of U.P. & ors. Vs Surendra Pratap & ors.
MANU/SC/0588/2016: AIR 2016 SC 2712:
2016 LawSuit (SC) 501.

10. Shiv Ram Singh Vs St. of U.P. & ors.,
(2015) 5 AWC 4918

11. Gajanan Kamlya Patil Vs Addl. Collector &
Comp. Auth. & ors., JT 2014 (3) SC 211
2 All. Gayur & Anr. Vs State of U.P. & Ors.
1711
12. St. of U.P. Vs Doon Udhyog (P) Ltd., 2005
(60) AllLR 535

13. St. of U.P. Vs Hart Ram, (2005) 60 AllLR
535, 2005 (60) AllLR 535

14. St. of U.P. Thru Secy Avas Avam Shahri
Niyojan Vs Ruknuddin & ors.

15. Rati Ram Vs St. of U.P. & ors. (2018) (4)
ALJ 338

16. Mohd. Islam & 3 Others Vs St. of U.P. in
Writ Petition No. 15864 of (2015)

17. Mohammad Suaif & anr. Vs St. of U.P. &
ors., 2005 (60) AllLR 535

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J)

1. The petitioners have instituted
this writ proceedings for issuance of a
writ
of
mandamus
directing
the
respondents not to compel them to
handover the possession of the land,
which is said to be declared surplus under
the provisions of the Urban Land (Ceiling
and Regulation) Act, 1976 (for short Act
No. 33 of 1976)1. They claim to be true
and actual owner of this land.

2. The facts which emerge from the
material on the record are that the
petitioners claim to be owner of Plot Nos.
250, 251 and 283M situated in Village Chak
Adampur, district Saharanpur. A proceeding
under the Act, 1976 was initiated against the
father of the petitioners, Yusuf, for
declaration of the surplus land. The
petitioners' father had filed a statement
under sub-section (1) of Section 6 of the
Act, 1976. On the basis of the said
statement Case/ Suit No. 2201/1976, State
v. Yusuf, was registered. A statement under
sub-section (3) of Section 8 of the Act, 1976
was issued on 06th November, 1978,
wherein total 8196.80 square meters land
was proposed to be surplus inclusive of
2000 square meters land from Khasra Nos.
250, 251 and 283 and accordingly, by
excluding said 2000 square meters of land,
only 6196.80 square meters of land was
proposed to be declared surplus. The said
statement is said to be served upon the
tenure holder on 30th November, 1978
through the process server. In response
thereto, the petitioners' father had filed an
objection on 12th December, 1978. The
Prescribed Authority passed an order on
27th November, 1980 under sub-section (4)
of Section 8 of the Act, 1976 and the final
statement under Section 9 of the Act, 1976
was issued on 02nd April, 1981. It is stated
that it was served on the tenure holder on
06th April, 1981. Thereafter the matter was
sent for publication in the Government
Gazette in terms of sub-section (1) of
Section 10 and sub-section (3) of Section 10
of the Act, 1976 on 28th February, 1983
and 18th December, 1986 respectively.
After the notification, a notice under Subsection (5) of Section 10 of the Act, 1976
was issued on 29th October, 1987 calling
upon the tenure holder to surrender the
possession. This notice is alleged to be
served upon the tenure holder personally by
process server on 20th November, 1987.
The State claimed that the possession has
been taken pursuant to the said notice under
sub-section (5) of Section 10 of the Act,
1976 on 31st November, 1987, the name of
the State Government has been recorded in
the revenue record on 06th March, 1993 and
the surplus land has been handed over to the
Saharanpur
Development
Authority,
Saharanpur on 29th June, 2002.

3. It is asserted by the petitioners
that they are still in physical and
cultivatory possession of the land which
1712 INDIAN LAW REPORTS ALLAHABAD SERIES
has been declared surplus. The petitioners
have also averred that no notice under
sub-section (5) of Section 10 of the Act,
1976 was issued to the petitioners and
they have never signed any document
regarding the delivery of possession. It is
also averred that no forceful possession
under the provisions of sub-section (6) of
Section 10 of the Act, 1976 was taken by
the State from the petitioners or actual
tenure holder (father of the petitioners).
The petitioners have also averred that they
have not received any compensation of
the land, which has been declared surplus.
It is further stated that for the first time
the name of the State Government was
mutated in the revenue records on 06th
February, 2008, after about ten years of
coming into force of the Urban Land
(Ceiling and Regulation) Repeal Act,
1999 (Act 15 of 1999)2. It is stated that
the State Government is alleged to have
transferred the land in favour of the
Saharanpur Development Authority on
29th January, 2002, much after coming
into force of the Repeal Act. In the
Dakhalnama it is clearly recorded that the
land is agricultural land, which shows that
at the time of handing over possession to
the Saharanpur Development Authority
the land was not an urban land and it was
agricultural land. The petitioners claim
that they are still in possession.

4. It is stated that under Section 2(o)
of the Act, 1976 the "urban land" is
defined, it does not include the land which
is mainly used for the purpose of
agriculture. Section 2(q) also provides
"vacant land", not being land mainly for
the purpose of agriculture.

5. Counter affidavits have been filed
on behalf of the State authorities and the
Saharanpur Development Authority.

6. The stand taken in the counter
affidavit of the State is that after the
publication in the Government gazette
under sub-section (1) of Section 10 and
sub-section (3) of Section (10) of the Act,
1976 the land vests in the State
Government. Thereafter a notice under
sub-section (5) of Section 10 of the Act,
1976 was issued on 29th October, 1987
and the same was served upon the tenure
holder
through
the
process
server
personally on 20th November, 1987. It is
further stated that after adopting all the
proceedings according to law on the
aforesaid declared surplus land, the
possession was taken by the State on 31st
November, 1987 and thereafter the
aforesaid surplus land has been handed
over to the Saharanpur Development
Authority on 29th January, 2002 for
construction of Awas Yojna. In support of
the fact that the possession has already
been taken much before the Repeal Act
came into force, a xerox copy of the
possession
order/
letter
dated
31st
November, 1987 is annexed along with
the counter affidavit.

7. In the counter affidavit filed on
behalf of the Saharanpur Development
Authority it is stated that the stand taken
by the tenure holder Yusuf in his
application dated 12th December, 1978
that his land be exempted under Section
20 of the Act, 1976 on the ground that the
disputed land was being used for the
agricultural purpose, was not found
correct whereas the competent authority
has found that the disputed land was not
agricultural land. It is stated that after the
land
was
declared
surplus
by
the
competent authority on 27th November,
1980, the notifications under sub-sections
(1) and (3) of Section 10 of the Act, 1976
were made on 24th February, 1983 and
2 All. Gayur & Anr. Vs State of U.P. & Ors.
1713
04th December, 1986 respectively. Thus,
the disputed land stood vested in the State
Government. It is stated that notice under
sub-section (5) of Section 10 of the Act,
1976 was issued to the tenure holder on
01st October, 1987, which was served
upon him and pursuant thereto the
possession memo was prepared on 31st
November, 1987. The said Dakhalnama is
on the record as CA-5 to the counter
affidavit. Later, the State Government has
transferred the property to the Saharanpur
Development Authority on 29th January,
2002 for being utilized in its residential
schemes. Subsequent transfer/ possession
memo dated 29th January, 2002 was
executed by the Revenue Inspector,
Saharanpur (as representative of the Zila
Adhikari,
Saharanpur),
Tehsildar
Saharanpur, Surveyor Urban Land Ceiling
and
Junior
Engineer
Saharanpur
Development Authority (as representative
of the Vice-Chairman of the Saharanpur
Development
Authority).
The
said
possession memo is on the record as
annexure-CA-6 to the counter affidavit.

8. We have heard Sri Madhusudan
Dixit, learned counsel for the petitioners,
learned Standing Counsel and learned
counsel for the Saharanpur Development
Authority.

9. Sri Madhusudan Dixit, learned
counsel for the petitioners, submitted that
the proceedings stood abated in terms of
Section 3 of the Repeal Act. It is
submitted that the expression "deemed to
have acquired" or "deemed to have
vested" would not be applicable if the
State fails to establish that the actual
possession has been taken in terms of subsection (5) of Section 10 and sub-section
(6) of Section 10 of the Act, 1976. He
submitted that in terms of the notice
issued under sub-section (5) of Section 10
of the Act, 1976 the tenure holder has not
handed over possession to the Collector,
which is evident from the material on the
record. He further submitted that from the
pleadings of the respondents in their
counter affidavits it is clear that recourse
to sub-section (6) of Section 10 of the
Act, 1976 has not been taken as there is
no pleading in the counter affidavits that
forcible possession has been taken under
sub-section (6) of Section 10 of the Act,
1976. Moreover, the State has failed to
point out any document in the original
record showing taking over the forcible
possession.

10. Sri Dixit has drawn our attention
to the Dakhalnama and the averments
made in the counter affidavits filed on
behalf of the State and the Saharanpur
Development
Authority
that
the
possession has been taken on 31st
November, 2002, which is non-existent
date on calender and the repeated
reference of the said date not only in the
original records but also in the affidavits
filed on behalf of both the respondents
clearly demonstrate that the documents
showing possession is a paper work in the
office of the concerned respondent. He
has further pointed out that it is not the
case of the respondents that tenure holder
voluntarily surrendered the possession.
Thus,
it
was
imperative
that
the
possession should have been taken in
terms of sub-section (6) of Section 10 of
the Act, 1976 and there is no pleading in
the affidavits of the respondents that
forcible possession from the tenure holder
was taken.

11. He further urged that from the
memo of possession it is evident that the
tenure holder was not present at the time
1714 INDIAN LAW REPORTS ALLAHABAD SERIES
of delivery of possession and on the
possession memo there is no signature of
the tenure holder. This fact clearly shows
that the petitioners have not given
possession voluntarily pursuant to the
notice issued under sub-section (5) of
Section 10 of the Act, 1976. In view of
the said facts, it is urged that the
proceedings stood abated as the tenure
holders are still in possession of the
surplus land when the Repeal Act came
into force.

12. He urged that the notice under
sub-section (5) of Section 10 of the Act,
1976 was issued on 29th October, 1987 and
is alleged to have been served upon Yusuf
on 20th November, 1987 and the possession
is taken on 31st November, 1987 i.e. before
expiry of 30 days. Learned counsel for the
petitioners asserted that the Directions,
issued by the State Government under
Section 35 of the Act, 1976, namely, The
Uttar Pradesh Urban Land Ceiling (Taking
of Possession, Payment of Amount and
Allied Matters) Directions, 19833 has been
completely ignored in taking the possession.

13. He submitted that the petitioners' land
is agricultural land as defined under Sections
2(o) and 2(q) of the Act, 1976, which is evident
from the possession memo dated 31st
November, 1987 when land was alleged to be
transferred to the Saharanpur Development
Authority and it is recorded therein that land is
agricultural land. It was sought to be urged that
transfer of land to the Saharanpur Development
Authority is no transfer in the eye of law
because the State had not taken possession in
accordance with law, therefore, it had no
authority to transfer it in favour of the
Saharanpur Development Authority.

14. Sri Dixit has placed reliance on
the judgments of the Supreme Court in
the case of State of Uttar Pradesh v.
Hari Ram4; Special Leave Petition (C)
No. 16582 of 2014 decided with Special
Leave Petition (C) No. 38922 of 2013,
State of U.P. and another v. Vinod
Kumar Tripathi and others, on 19th
January, 2016; and the judgments of this
Court in State of U.P. and another v.
Nek Singh5; Ram Chandra Pandey v.
State of U.P. and others6; Ehsan v.
State of U.P. and another7; Lalji v.
State of U.P. and others8; and Yasin
and others v. State of U.P. and others9.

15. We had summoned the original
record as there was serious dispute with
regard
to
taking over
of physical
possession of the surplus land. We have
perused the original records. Possession
memo is dated 31(Sic) November, 1987.
One Sarjeet Singh, Bhulekh Nirikshak,
and the Lekhpal of the area have taken the
possession. Petitioners or their father did
not sign on the possession memo. There is
no explanation in counter affidavits filed
by the respondents on this aspect.

16. We have pointed out to the
learned Standing Counsel that in the
original dakhalnama the date has been
mentioned as 31st November, 1987,
which is apparently incorrect as the month
of November is always of 30 days.
Learned Standing Counsel has not taken a
stand that it was a typographical error.
Moreover, in both the counter affidavits
filed by the State authorities and the
Saharanpur Development Authority the
same date has been mentioned in several
paragraphs of the affidavits. Hence, there
is no stand taken by the respondents that
the said date appears to be recorded
inadvertently or it is a typographical error.
Even at this stage learned Standing
Counsel has not tried to explain this
2 All. Gayur & Anr. Vs State of U.P. & Ors.
1715
apparent error. Hence, we are not in a
position to treat the obvious mistake as
typographical or inadvertent mistake.

17. Learned Standing Counsel
submitted that after the notifications
under sub-section (1) and sub-section (3)
of Section 10 of the Act, 1976 the land
stood vested in the State Government and
a notice was served upon the petitioners
under sub-section (5) of Section 10 of the
Act, 1976 personally by the process
server on 20th November, 1987 and
thereafter on 31st November, 1987 the
possession has been taken. Hence, the
proceedings cannot be said to be abated
under the Repeal Act.

18. Learned Standing Counsel has
placed reliance on the judgments of the
Supreme Court in the cases of State of
Assam v. Bhaskar Jyoti Sarma and
others10 and State of U.P. and others v.
Surendra Pratap and others11, and
judgment of this Court in Shiv Ram
Singh v. State of U.P. and others12.

19. Learned counsel for the
Saharanpur Development Authority has
adopted the submissions of learned
Standing Counsel.

20. It is apposite at this stage to set
out relevant provisions of the Acts and the
executive orders issued from time to time.

21. Section 2(o) of the Act, 1976
defines "urban land" and Section 2(q)
defines "vacant land". Section 6 of the
Act, 1976 provides that owner of the land
shall submit a statement giving detail of
the vacant land. Section 8(1) enjoins that
the competent authority shall get a survey
of the land conducted and on the basis of
the said survey a draft statement under
sub-section (3) of Section 8 of the Act,
1976 was required to be served upon the
land owner calling for objection to the
said statement within thirty days and the
order is passed under sub-section (4) of
Section 8 of the Act, 1976 and later a
notification is issued under sub-section
(1) of Section 10 for publication in the
Gazette giving particulars of the vacant
land.
Thereafter
another
notice
is
published stating that the land shall be
deemed to have been vested on the
Government free from all encumbrances.
Thereafter a notice under sub-section (5)
of Section 10 of the Act, 1976 is issued
calling upon the land owner to hand over
possession of the land declared surplus. If
the land owner fails to handover the
possession voluntarily in response to the
aforementioned notice, sub-section (6) of
Section 10 of the Act, 1976 confers a
power upon the competent authority to
take forceful possession. For the sake of
convenience, Sections 2(o), 2(q) and subsections (5) and (6) of Section 10 of the
Act, 1976 are reproduced hereunder:

"2(o) "urban land" means,--

(i) any land situated within the
limits of an urban agglomeration and
referred to as such in the master plan; or

(ii) in a case where there is no
master plan, or where the master plan
does not refer to any land as urban land,
any land within the limits of an urban
agglomeration and situated in any area
included within the local limits of a
municipality (by whatever name called), a
notified area committee, a town area
committee, a city and town committee, a
small town committee, a cantonment
board or a panchayat,

but does not include any such
land which is mainly used for the purpose
of agriculture.
1716 INDIAN LAW REPORTS ALLAHABAD SERIES

Explanation.--For the purpose
of this clause and clause (q),--

(A)
"agriculture"
includes
horticulture, but does not include--

(i) raising of grass,

(ii) dairy farming,

(iii) poultry farming,

(iv) breeding of live-stock, and

(v) such cultivation, or the
growing of such plant, as may be
prescribed;

(B) land shall not be deemed to
be used mainly for the purpose of
agriculture, if such land is not entered in
the revenue or land records before the
appointed day as for the purpose of
agriculture:

Provided that where on any
land which is entered in the revenue or
land records before the appointed day as
for the purpose of agriculture, there is a
building which is not in the nature of a
farm-house, then, so much of the extent of
such land as is occupied by the building
shall not be deemed to be used mainly for
the purpose of agriculture:

Provided further that if any
question arises whether any building is in
the nature of a farm-house, such question
shall be referred to the State Government
and the decision of the State Government
thereon shall be final;

(C) Notwithstanding anything
contained
in
clause
(B)
of
this
Explanation, land shall not be deemed to
be mainly used for the purpose of
agriculture if the land has been specified
in the master plan for a purpose other
than agriculture;"

"2(q) "vacant land" means land,
not being land mainly used for the
purpose of agriculture, in an urban
agglomeration, but does not include--

(i) land on which construction
of a building is not permissible under the
building regulations in force in the area
in which such land is situated;

(ii) in an area where there are
building regulations, the land occupied by
any building which has been constructed
before, or is being constructed on, the
appointed day with the approval of the
appropriate authority and the land
appurtenant to such building; and

(iii) in an area where there are
no building regulations, the land occupied
by
any
building
which
has
been
constructed
before,
or
is
being
constructed on, the appointed day and the
land appurtenant to such building:

Provided that where any person
ordinarily keeps his cattle, other than for
the purpose of dairy farming or for the
purpose of breeding of live-stock, on any
land situated in a village within an urban
agglomeration (described as a village in
the revenue records), then, so much extent
of the land as has been ordinarily used for
the keeping of such cattle immediately
before the appointed day shall not be
deemed to be vacant land for the purposes
of this clause."

"10(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 authorised by the State
Government in this behalf within thirty days
of the service of the notice."

"10(6) If any person refuses or
fails to comply with an order made under
sub-section (5), the competent authority
may take possession of the vacant land or
cause it to be given to the concerned State
Government or to any person duly
authorised by such State Government in
this behalf and may for that purpose use
such force as may be necessary.
2 All. Gayur & Anr. Vs State of U.P. & Ors.
1717

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."

22. Section 11 of the Act, 1976
enjoins that compensation shall be paid to
the land owner.

23. In exercise of the powers under
Section 35 of the Act, 1976 the State
Government issued the Directions, 1983
known as The Uttar Pradesh Urban Land
Ceiling (Taking of Possession, Payment
of
Amount
and
Allied
Matters)
Directions, 1983 (Directions issued by the
State Government under Section 35 of the
Act, 1976) which is reproduced below:

"The Uttar Pradesh Urban Land
Ceiling (Taking of Possession, Payment of
Amount and Allied Matters) Directions,
1983 (Directions issued by the State
Government under Section 35 of 1976
Act):

"In exercise of the powers under
Section 35 of the Urban Land (Ceiling
and Regulation) Act, 1976 (Act No.33 of
1976), the Governor is pleased to issue
the following directions relating to the
powers and duties of the competent
authority in respect of amount referred to
in Section 11 of the aforesaid Act to the
person or persons entitled thereto:

1. Short title, application and
commencement.-- These Directions may
be called the Uttar Pradesh Urban Land
Ceiling (Taking of Possession, Payment of
Amount and Allied Matters) Directions,
1983

(2) The provisions contained in
this direction shall be subjected to the
provisions of any directions or rules or
orders issued by the Central Government
with such directions or
 rules or orders.

(3) They shall come into force
with effect from the date of publication in
the gazette.

2. Definitions.--* * *

3.
Procedure
for
taking
possession of vacant land in excess of
ceiling
limit.--(1)
The
competent
authority will maintain a register in Form
No.ULC -1 for each case regarding which
notification under sub-section (3) of
Section 10 of the Act is published in the
gazette.

4. (1) * * *

(2) An order in Form No. ULCII will be sent to each land holder as
prescribed under sub-section (5) of
Section 109 of the Act and the date of
issue and service of the order will be
entered in Column 8 of Form No. ULC-I.

(3) On possession of the excess
vacant land being taken in accordance
with the provisions of sub-section (5) or
sub-section (6) of Section 10 of the Act,
entries will be made in a register in Form
ULC-III and also in Column 9 of the
Form
No.
ULC-1.
The
competent
authority shall in token of verification of
the entries, put his signatures in Column
11 of Form No. ULC-1 and Column 10 of
Form No. ULC-III.

Form No. ULC-1

Register
of
notice
under
Sections 10(3) and 10(5)
1 2
3
4
5
6
7
8
9
10 11
1718 INDIAN LAW REPORTS ALLAHABAD SERIES
S
l.
N
o.
Sl.
No.
of
regi
ster
of
rec
eipt
Sl.
No.
of
regi
ster
of
taki
ng
pos
ses
sion
Ca
se
Nu
mber
Da
te
of
No
tifi
-
cat
ion
un
der
Se
cti
-
on
10
(3)
La
nd
to
be
ac
qui
-
red
vil
lag
e
M
oh
ali

Da
te
of
tak
ing
ov
er
po
sse
-
ssi
on

Re
mar
ks
Si
gn
at
ur
e
of
co
m
pe
te
nt
au
th
ori
ty

Form No. ULC-II

Notice order under Section
10(5)

[See clause (2) of Direction
(3)]

 In the court of competent
authority

U.L.C. ...............

No.....................
Date
..................

Sri/Smt............................... T/o
.........................

In exercise of the powers vested
under Section 10(5) of the Urban Land
(Ceiling and Regulation) Act, 1976 (Act
No.33 of 1976), you are hereby informed
that vide Notification No....... dated .....
under Section 10(1) published in Uttar
Pradesh Gazette dated ...... following land
has vested absolutely in the State free
from all encumbrances as a consequence
Notification
under
Section
10(3)
published in Uttar Pradesh Gazette dated
....... Notification No......... dated .... With
effect from .......... you are hereby ordered
to surrender or deliver the possession of
the land to the Collector of the District
Authorised
in
this
behalf
under
Notification No.324/II-27- U.C.77 dated
February 9, 1977, published in the
gazette, dated March 12, 1977, within
thirty days from the date of receipt of this
order otherwise action under sub-section
(6) of Section 10 of the Act will follow.

Description of vacant
land
Location Khasra
No.
identification

Area
Remarks
1
2
3
4

Competent
Authority

...............................

No. .......................

Dated.............................

Copy forwarded to the Collector
............ with the request that action for
immediate taking over of the possession of
the above detailed surplus land and its
proper maintenance may, kindly be taken
an intimation be given to the undersigned
along with the copy of certificate to verify.

Competent Authority

..............................."

24. The Act, 1976 was repealed by
the Parliament pursuant to the resolutions
passed by the State Legislatures of
Haryana and Punjab empowering the
Parliament to repeal the Act, 1976 in
those States. Accordingly, the Urban
Land (Ceiling and Regulation) Repeal
Act, 1999 (Act 15 of 1999) was passed by
the Parliament. Subsequently, it was open
to the other States also to adopt the
Repeal Act by resolution and accordingly,
the Act, 1976 would stand repealed in
such State from the date of adoption of
the Repeal Act. In the State of Uttar
Pradesh, the Repeal Act was adopted on
18th March, 1999. Sub-section (2) of
Section 3 of the Repeal Act provides that
if the possession has not been taken, the
proceeding under the Act, 1976 shall
stand abated. For convenience, Section 3
of the Repeal Act is reproduced as under:
2 All. Gayur & Anr. Vs State of U.P. & Ors.
1719

"3. Saving.-- (1) The repeal of
the principal Act shall not affect--

(a) the vesting of any vacant
land under sub-section 10, possession of
which has been taken over by the State
Government
or
any
person
duly
authorized 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 authorized 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."

25. The only question which falls for
determination is whether the possession
taken
by
the
respondents-State
functionaries on 31st November, 1987 is a
valid and legal and in case it is found that
the said possession was illegal and void,
in that event whether the proceedings
shall stand abated in terms of Section 3 of
the Repeal Act or not. An ancillary
question also arises as to whether the
possession can be taken by the Revenue
Inspector
and
the
Lekhpal
as
representative of the District Magistrate.

26. The Supreme Court in the case
of Hari Ram (supra) went elaborately
into all implications of the statutory
provisions and the directions issued by the
State of U.P., wherein detailed procedures
have been laid down for taking possession
of surplus land. It is worthwhile to
mention that the Directions, 1983 has
statutory flavour as it has been issued
under Section 35 of the Act, 1976. In the
said case, the Supreme Court has held as
under:

"30. Vacant land, it may be
noted, is not actually acquired but
deemed to have been acquired, in that
deeming things to be what they are not.
Acquisition, therefore, does not take
possession unless there is an indication to
the contrary. It is trite law that in
construing a deeming provision, it is
necessary to bear in mind the legislative
purpose. The purpose of the Act is to
impose ceiling on vacant land, for the
acquisition of land in excess of the ceiling
limit thereby to regulate construction on
such lands, to prevent concentration of
urban lands in hands of few persons, so
as to bring about equitable distribution.
For
achieving
that
object,
various
procedures have to be followed for
acquisition and vesting. When we look at
those words in the above setting and the
provisions to follow such as sub-sections
(5) and (6) of Section 10, the words
"acquired" and "vested" have different
meaning and content. Under Section
10(3), what is vested is de jure possession
not de facto, for more reasons than one
because we are testing the expression on
a statutory hypothesis and such an
hypothesis can be carried only to the
1720 INDIAN LAW REPORTS ALLAHABAD SERIES
extent necessary to achieve the legislative
intent.

Voluntary surrender

31. The "vesting" in sub-section
(3) of Section 10, in our view, means
vesting of title absolutely and not
possession though nothing stands in the
way of a person voluntarily surrendering
or delivering possession. The Court in
Maharaj Singh v. State of U.P.13, while
interpreting Section 117(1) of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 held that "vesting" is a word of
slippery import and has many meaning
and the context controls the text and the
purpose
and
scheme
project
the
particular semantic shade or nuance of
meaning. The Court in Rajendra Kumar v.
Kalyan14 held as follows: (SCC p. 114,
para 28)

"28.
...We
do
find
some
contentious substance in the contextual
facts, since vesting shall have to be a
"vesting" certain. 'To "vest", generally
means to give a property in.' (Per Brett,
L.J. Coverdale v. Charlton15 : Stroud's
Judicial Dictionary, 5th Edn. Vol. VI.)
Vesting in favour of the unborn person
and in the contextual facts on the basis of
a subsequent adoption after about 50
years without any authorization cannot
however but be termed to be a contingent
event. To 'vest', cannot be termed to be an
executor devise. Be it noted however, that
'vested' does not necessarily and always
mean 'vest in possession' but includes
'vest in interest' as well."

32. We are of the view that so
far as the present case is concerned, the
word "vesting" takes in every interest in
the property including de jure possession
and, not de facto but it is always open to a
person to voluntarily surrender and
deliver possession, under Section 10(3) of
the Act.

33. Before we examine subsection (5) and sub-section (6) of Section
10, let us examine the meaning of subsection (4) of Section 10 of the Act, which
says that during the period commencing
on the date of publication under subsection (1), ending with the day specified
in the declaration made under sub-section
(3), no person shall transfer by way of
sale, mortgage, gift or otherwise, any
excess vacant land, specified in the
notification and any such transfer made in
contravention of the Act shall be deemed
to be null and void. Further, it also says
that no person shall alter or cause to be
altered the use of such excess vacant land.
Therefore, from the date of publication of
the notification under sub-section (1) and
ending with the date specified in the
declaration made in sub-section (3), there
is no question of disturbing the possession
of a person, the possession, therefore,
continues to be with the holder of the
land.

Peaceful dispossession

34. Sub-section (5) of Section
10,
for
the
first
time,
speaks
of
"possession" which says where any land
is vested in the State Government under
sub-section (3) of Section 10, the
competent authority may, by notice in
writing, order any person, who may be in
possession of it to surrender or transfer
possession to the State Government or to
any other person, duly authorized by the
State Government.

35. If de facto possession has
already
passed
on
to
the
State
Government
by
the
two
deeming
provisions under sub-section (3) to
Section 10, there is no necessity of using
the expression "where any land is vested"
under sub-section (5) to Section 10.
Surrendering or transfer of possession
under sub-section (3) to Section 10 can be
2 All. Gayur & Anr. Vs State of U.P. & Ors.
1721
voluntary so that the person may get the
compensation as provided under Section
11 of the Act early. Once there is no
voluntary
surrender
or
delivery
of
possession,
necessarily
the
State
Government has to issue notice in writing
under sub-section (5) to Section 10 to
surrender or deliver possession. Subsection (5) of Section 10 visualizes a
situation of surrendering and delivering
possession, peacefully while sub-section
(6) of Section 10 contemplates a situation
of forceful dispossession.

Forceful dispossession

36. The Act provides for forceful
dispossession but only when a person refuses
or fails to comply with an order under subsection (5) of Section 10. Sub-section (6) to
Section 10 again speaks of "possession"
which says, if any person refuses or fails to
comply with the order made under subsection (5), the competent authority may take
possession of the vacant land to be given to
the State Government and for that purpose,
force - as may be necessary - can be used.
Sub-section (6), therefore, contemplates a
situation of a person refusing or fails to
comply with the order under sub-section (5),
in the event of which the competent authority
may take possession by use of force. Forcible
dispossession of the land, therefore, is being
resorted only in a situation which falls under
sub-section (6) and not under sub-section (5)
to Section 10. Sub-sections (5) and (6),
therefore, take care of both the situations, i.e.
taking possession by giving notice that is
"peaceful dispossession" and on failure to
surrender or give delivery of possession
under
Section
10(5),
than
"forceful
dispossession" under sub-section (6) of
Section 10."

27. The same issue with regard to
peaceful
possession
and
forceful
possession in terms of sub-sections (5)
and (6) of Section 10 of the Act, 1976 has
been elaborately considered again by the
Supreme Court in the case of Gajanan
Kamlya Patil v. Addl. Collector &
Comp. Auth. & ors.16. The Supreme
Court followed its earlier judgment in
State of U.P. v. Hari Ram (supra). In
this case the Supreme Court extensively
quoted with approval Paragraphs-30 to 36
of Hari Ram (supra). The relevant part
of the judgment of Gajanan Kamlya
Patil (supra) is extracted below:

"13. We have, therefore, clearly
indicated that it was always open to the
authorities to take forcible possession
and, in fact, in the notice issued under
Section 10(5) of the ULC Act, it was
stated that if the possession had not been
surrendered, possession would be taken
by application of necessary force. For
taking
forcible
possession,
certain
procedures
had
to
be
followed.
Respondents have no case that such
procedures were followed and forcible
possession was taken. Further, there is
nothing to show that the Respondents had
taken peaceful possession, nor there is
anything to show that the Appellants had
given voluntary possession. Facts would
clearly indicate that only de jure
possession had been taken by the
Respondents and not de facto possession
before coming into force of the repeal of
the Act. Since there is nothing to show
that de facto possession had been taken
from the Appellants prior to the execution
of the possession receipt in favour of
MRDA, it cannot hold on to the lands in
question, which are legally owned and
possessed
by
the
Appellants.
Consequently, we are inclined to allow
this appeal and quash the notice dated
17.2.2005 and subsequent action taken
therein in view of the repeal of the ULC
1722 INDIAN LAW REPORTS ALLAHABAD SERIES
Act. The above reasoning would apply in
respect of other appeals as well and all
proceedings
initiated
against
the
Appellants,
therefore,
would
stand
quashed."

28. In Special Leave Petition (C)
No. 16582 of 2014 (supra), the Supreme
Court has held as under:

"...As could be seen from the
Possession Certificate under Section
10(6) of the repealed ULC Act, District
Magistrate, who has been authorised,
possession of the land in question was not
taken. The Tehsildar was given liberty to
make the mutation proceedings and make
entry in the Revenue Record after taking
over
possession
as provided under
Section 10(6) of the ULC Act and inform
the same to the competent authority.