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

- **Citation:** (2019) 4 ILRA 345
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-06
- **Bench:** Pradeep Kumar Singh Baghel, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ikrar-ors-v-state-of-u-p-anr-44995
- **Pages:** 13

## Headnote

A. Civil Law - Urban Land (Ceiling and
Regulation) Act, 1976 - Section 10 (5)
and (6) - Urban Land (Ceiling and
Regulation) Repeal Act, 1999 - Section 3
and 4 - Possession over the vacant land
has been taken over by the Tehsildar and
not by the appropriate authority as
envisaged
under
the
Uttar
Pradesh
Urban
Land
Ceiling
(Taking
of
Possession, Payment of Amount and
346 INDIAN LAW REPORTS ALLAHABAD SERIES
Allied Matters) Directions, 1983 - Held,
in view of judgment of the Apex Court in
Hari Ram and directions issued by State
Government in Directions, 1983 as well
as Government Order dated 29.09.2015,
that possession has not been taken in
terms of the Directions, 1983 and
Government
Order
-
Tehsildar
and
Lekhpal are not authorized to take
possession - No material on record to
demonstrate that actual possession was
handed
over
to
the
Saharanpur
Development Authority. (Para 16, 24 & 25)

Held -

## Text

_Characters 0–39,690 of 41,815. This is a partial read: ask again with offset=39690 for what follows._

4 All. Ikrar & Ors. Vs. State of U.P. & Anr.
345
remedy. In fact, as stated earlier, in the
case of H.M.A. Agri Industries in Writ -
C No. 4462 of 2013, the issue was
centered around non supply of a copy of
an analysis report to the writ petitioner
which was used against the writ petitioner
by the concerned respondent authority. In
the latter case, the fact situation was
totally different. The allegation was in
respect of non compliance of direction
issued by the National Green Tribunal
(NGT) with regard to pollution caused by
the Abattoris. In both cases, the writ
petitioner was H.M.A. Agri Industries
Ltd., which was engaged in the business
of state of the art Abattoirs, where frozen
meat was packed and sold across the
world. The writ petitioner company was
directed by the Uttar Pradesh Pollution
Control Board to ensure that ETP
(Effluent
Treatment
Plant)
was
operational and the treated effluent
conformed to parameters. Certain other
directions were issued by the Uttar
Pradesh Pollution Control Board, as
contained in its communication dated 6th
February, 2019, and considering such
facts, the Division Bench had intervened.
At this stage we must observe that any
decision of any Court is an authority for a
proposition based on certain set of facts
and even a single distinction of any fact or
an
additional
fact
can
alter
the
applicability of its ratio. In the facts of the
instant case, as observed earlier, we do
not find the situation to be so exceptional
so as to allow the writ Court to intervene,
exercising
its
extraordinary
high
prerogative
discretionary
jurisdiction
under Article 226 of the Constitution of
India. The writ petitioner, of course, is not
without any remedy. Statutory alternative
remedy is available to the writ petitioner
in respect of both the orders dated 22nd
October, 2019. The writ petitioner is
always at liberty to approach the statutory
appellate authority in respect of the two
orders dated 22nd October, 2019, and take
all points which are available in law. We
make it clear that in the event the writ
petitioner
approaches
the
statutory
appellate authority, the said authority
shall not be influenced in any manner by
any observation made herein and shall
decide the appeals strictly in accordance
with law.

7.

The
writ
petition
stands
accordingly dismissed.
----------
(2019)12 ILR A345

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ C No: 36346 of 2014

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

Counsel for the Petitioners:
Sri Madhusudan Dixit

Counsel for the Respondents:
C.S.C., Sri Satyendra Pratap Singh, Sri
S.P. Singh

A. Civil Law - Urban Land (Ceiling and
Regulation) Act, 1976 - Section 10 (5)
and (6) - Urban Land (Ceiling and
Regulation) Repeal Act, 1999 - Section 3
and 4 - Possession over the vacant land
has been taken over by the Tehsildar and
not by the appropriate authority as
envisaged
under
the
Uttar
Pradesh
Urban
Land
Ceiling
(Taking
of
Possession, Payment of Amount and
346 INDIAN LAW REPORTS ALLAHABAD SERIES
Allied Matters) Directions, 1983 - Held,
in view of judgment of the Apex Court in
Hari Ram and directions issued by State
Government in Directions, 1983 as well
as Government Order dated 29.09.2015,
that possession has not been taken in
terms of the Directions, 1983 and
Government
Order
-
Tehsildar
and
Lekhpal are not authorized to take
possession - No material on record to
demonstrate that actual possession was
handed
over
to
the
Saharanpur
Development Authority. (Para 16, 24 & 25)

Held -
28. In view of the above, we are of the
considered opinion that if possession has not
been taken in terms of Section 10(5) and
10(6) of the Act, 1976, petitioners are entitled
for the benefit under Section 3 and 4 of the
Repeal Act.

Writ Petition allowed. (E-1)

List of cases cited: -

1. Gajanan Kamlya v. Addl. Collector & Comp.
Auth.& Ors. JT 2014 (3) SC 2112.

2. Rati Ram Vs. State of U.P. and Others, 2018
(4) ALJ 338

3. Writ C No. 31072 of 2009, Gayur and
Another Vs. State of U.P. and Others, decided
on 20.08.2019

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Present petition has been filed
assailing the order dated 5.5.2014 passed
by Collector, Saharanpur rejecting the
representation of petitioners, as well as
for
seeking
direction
upon
the
respondents not to interfere in possesssion
over Khasra No.12M and 19M measuring
11479.47 sq.mtr situated in Village
Fatehpur Jat, District Saharanpur and also
for direction to correct revenue records,
and record names of petitioners over the
land declared vacant in proceedings under
the Urban Land (Ceiling and Regulation)
Act, 1976 (for short "Act No.33 of
1976").

2. Brief facts which emerges from
the material on record, are that petitioners
who are 6 in numbers are sons of late
Iqbal, who filed statement under Section
6(1) of the Act, stating that plot no.12 and
19 were his agricultural land and was
outside the purview of Act of 1976.
Notices under Section 8(3) of the Act was
issued on 17.8.1978 stating that out of
total area of land measuring 13479.47 sq.
mtr., 11479.47 sq. mtr. was being
declared surplus leaving behind 2000 sq.
mtr. in khasra no.12M and 19M in
village- Fatehpur Jat. On 26.10.1978, the
competent
authority
declared
the
aforesaid land as vacant.

3. Notification under Section 10(1)
was made on 29.11.1978 and under
Section 10(3) on 20.02.1990. Notices u/s.
10(5)
were
issued
on
15.04.1993,
however, according to petitioners, the said
notices were never served upon them. It is
further
averred
that
father
of
the
petitioners till his death, sowed his crop
over the land, which is evident from
khasra of year 2010-11 and was in
complete physical possession over the
land. It has further been stated that no
notice u/s. 10(6) of the Act was issued by
respondents for forceful dispossession of
their late father, nor he was dispossessed
from the land in question, and they are in
complete actual physical possession over
the land in dispute till date.

4. Petitioners filed Writ Petition No.
3367 of 2007 before this Court, which
was disposed of on 31.03.2010, with a
direction to the petitioners to file a
4 All. Ikrar & Ors. Vs. State of U.P. & Anr.
347
representation before respondent no.2,
who shall pass appropriate orders in
accordance
with
law
after
giving
opportunity of hearing. The representation
was decided on 05.05.2014 by respondent
no.2, who held that the possession of land
had already been taken by Tehsildar,
Sadar on 31.07.1993 and the land in
question is recorded in the name of State
Government in revenue records since
21.08.1993, and further on 19.02.2002,
the land was transferred to Saharanpur
Development Authority. The order of
respondent no.2 is under challenge in
present petition.

5. Respondent-State filed a counter
affidavit stating that the possession of
land has been taken on 31.07.1993 and
the name of State Government has been
recorded in the revenue records. Further,
the possession memo has been brought on
record as CA-2.

6. During the pendency of above
writ petition, an Impleadment Application
No.6 of 2019 was filed for impleading
Saharanpur Development Authority as
one of the respondent. On 22.04.2019, the
amendment application was allowed and
necessary correction in the array of parties
was made. The matter was listed on
15.05.2019, thereafter on 16.05.2019. On
20.05.2019, learned Standing Counsel
produced the original records of the case
before the Court. This Court after perusal
of the records passed following order:-

"Learned Standing Counsel has
produced the original record.

We have perused the same.

The possession memo bears
only signature of Tehsildar and Lekhpal,
Chandrapal
Sharma,
there
is
no
signatures
of
the
petitioners
and
witnesses.

It is urged by learned counsel
for petitioners that the Tehsildar is not
appropriate
Authority
to
take
the
possession of the land in view of Rules
1983.

Learned Standing Counsel has
not disputed the said fact.

Our attention has been drawn to
the impugned order passed by the District
Magistrate dated 5th May, 2014, wherein
it is mentioned that after issuance of
notice dated 15th April, 1993 under
Section 10 (5) of the Act, the Tehsildar
Sadar has taken possession of the land on
31st July,1993.

On 17th July, 2014, all the
respondents were granted four weeks time
to file counter affidavit.

The State has filed its counter
affidavit, which is taken on record.

 The Saharanpur Development
Authority
has
been
impleaded
on
22.04.2019 in the interest of justice six
weeks time is granted to file counter
affidavit.

Put
up
this
case
in
the
additional cause list before this Bench as
a part heard on 19th July, 2019.

The
original
records
are
returned to learned Standing Counsel. "

7. Counsel for the Saharanpur
Development Authority was granted six
weeks time to file counter affidavit. When
the matter was again listed on 19.07.2019,
Counsel for the Saharanpur Development
Authority was not present and the case
was adjourned. Again, the matter was
listed on 27.09.2019 and as a last
opportunity, six weeks and no more time
was
granted
to
the
counsel
for
348 INDIAN LAW REPORTS ALLAHABAD SERIES
Development Authority to file counter
affidavit and the matter was posted
peremptorily for 24.10.2019. On the said
date again Counsel for the Saharanpur
Development Authority was not present,
neither any counter affidavit was filed on
behalf of the Development Authority, thus
we had no option but to proceed and
decide the matter.

8. Counsel for the petitioners
submitted that after coming of the Repeal
Act, proceedings under the Urban Ceiling
Act in view of Section 3 stood abated. As
no actual possession has been taken in
terms of sub-section 5 of Section 10 and
sub-section 6 of Section 10 of the Act,
1976. He further submitted that no notice
under sub-section 5 of Section 10 was
served on the petitioners, nor the tenure
holders have handed over the possession
to Collector, which is evident from the
material on record. He further submitted
that from pleadings of respondent-State in
their counter affidavit, it is clear that no
recourse to sub-section 6 of Section 10
has been taken for forcible possession by
the State. Moreover, State has failed to
point out any document in the original
record showing taking over the physical
possession.

9. He further invited the attention of
the Court to the Dakhalnama, which has
been brought on record by the State in
their counter affidavit as well as in the
original
records,
which
shows
that
possession was taken over by Tehsildaar,
which is not an appropriate authority to
take possession of the land in view of
Rules, 1983 and further it does not bear
the signature or thumb impression of the
tenure
holder.
This
fact
clearly
demonstrates that petitioners have not
handed over possession voluntarily to the
State pursuant to notice issued under subsection 5 of Section 10 of the Act, 1976,
as such proceedings stood abated as
tenure holders are still in possession over
the land.

10. Sri Dixit had further relied upon
judgment of Apex Court in cases of State
of U.P. Vs. Hari Ram, 2013 (4) SCC 280
and Banda Development Authority Vs.
Moti lal Agarwal and Others, 2011 Law
Suit (SC) 411 and judgment of this Court
in State of U.P. & Another Vs. Nek
Singh, 2010 Law Suit (Alld.) 3581, Ram
Chandra Pandey vs. State of U.P. &
Others, 2010 (82) ALR 136, Ehsan Vs.
State of U.P. & Others, Writ C No.21009
of 2012, Lalji Vs. State of U.P. & Others,
2018 (5) ADJ 566, Yaseen & Others Vs.
State of U.P. & Others, 2014 (4) ADJ
305 (DB), Mohammad Suaif & Another
Vs. State of U.P. & Others, Writ C
No.12696 of 2009 decided on 07.05.2019,
Mohammad Islam & Another Vs. State
of U.P. & Others, Writ C No.15864 of
2015 decided on 04.12.2017, State of
U.P. Vs. Ruknuddin & Others, Writ C
No.54830 of 2011 decided on 03.10.2018.

11. Learned Standing Counsel
defending the action of State Government
as well as order passed by Collector,
Saharanpur on 05.05.2014, submitted that
possession of surplus land was taken on
31.07.1993, pursuant to notice under subsection 5 of Section 10 issued on
15.04.1993, which was duly served upon
wife of the tenure holder by process
server on 24.08.1993, and name of the
State Government was mutated in revenue
records over the vacant piece of land.
Subsequently, on 19.02.2002, land in
question was transferred in favour of
Saharanpur Development Authority, as
such, claim of petitioner that pursuant to
Repeal Act, proceedings stood abated,
4 All. Ikrar & Ors. Vs. State of U.P. & Anr.
349
cannot be accepted as possession was
duly taken in accordance with law and
vacant piece of land was transferred in
favour
of
Saharanpur
Development
Authority.

12. We had summoned the original
records as there was a serious dispute
with regard to taking
of physical
possession of the surplus land.

13. We have perused the original
records. From perusal of possession
memo dated 31.07.1993, it is clear that
the Tehsildar, Saharanpur and Chandrapal
Sharma, Lekhpal has taken the possession
of the land on 31.07.1993 but possession
memo does not bear the signature of the
person, who has transferred the land, nor
of any witness.

14. We have heard Sri Madhusudan
Dixit, learned counsel for the petitioners,
learned Standing Counsel for respondent
nos.1, 2 & 3 and have perused the
material on record.

15. It is not in dispute that
proceedings under Act No.33 of 1976 was
initiated against father of petitioners in
year 1978 for declaring surplus land. It is
also not in dispute that notices u/s. 10(1)
and 10(3) were issued. Notice under subsection 5 of Section 10, which is alleged
to have been issued on 15.04.1993,
according to petitioners was not served
upon the tenure holder, while State has
categorically submitted that it was served
upon wife of the tenure holder through
process server on 24.08.1993. However,
as per the State, possession was taken on
31.07.1993 by the Tehsildar Saharanpur,
alongwith Lekhpal copy of dakhalnama
has been brought on record, which
demonstrates the fact that it does not bear
the signature or thumb impression of the
person,
who
has
transferred
the
possession, nor of any witness, while it
only bears the signature of the person
receiving the possession.

16. Collector, Saharanpur, while
passing the order impugned had held that
possession has been taken over by the
Tehsildar pursuant to notice under Section
10(5) of the Act on 31.07.1993, thus it is
an accepted fact that the possession over
the vacant land has been taken over by the
Tehsildar and not by the appropriate
authority as envisaged under 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
350 INDIAN LAW REPORTS ALLAHABAD SERIES
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)
Sl.
N
o.
Sl.
N
o.
of
re
gi
st
er
of
Cas
e
Numbe
r
D
at
e
of
N
oti
fic
ati
Lan
d to
be
acqu
i-red
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ge
Moh
ali
D
at
e
of
ta
king
ov
er
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-
m
ar
ks
Si
gn
at
ur
e
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re
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ipt
Sl.
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o.
of
re
gi
st
er
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po
ss
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si
on
on
un
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(3
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ss
-
es
si
on
te
nt
au
th
or
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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
4 All. Ikrar & Ors. Vs. State of U.P. & Anr.
351
order otherwise action under sub-section
(6) of Section 10 of the Act will follow.

Description of vacant land
Khasr
a No.
identifi
cation
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

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

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

17. Thus, possession taken by the
Tehsildar is against the directions issued
by the State Government u/s. 35 of the
Act, 1976, which envisages that it is the
Collector,
who
is
competent
and
authorized to take possession.

18. The Supreme Court in case of
Hari Ram (Supra) had laid down detailed
procedure for taking possession of the
surplus
land.
The
Supreme
Court
distinguished
between
voluntary
surrender made under sub-section 3 of
Section 10, peaceful dispossession under
sub-section 5 of Section 10 and forceful
dispossession made under sub-section 6
of Section 10, relevant paragraphs are
extracted here 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 subsections (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 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
352 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.
4 All. Ikrar & Ors. Vs. State of U.P. & Anr.
353

Forceful dispossession

 36. The Act provides for forceful
dispossession but only when a person
refuses or fails to comply with an order
under sub-section (5) of Section 10. Subsection (6) to Section 10 again speaks of
"possession" which says, if any person
refuses or fails to comply with the order
made
under
sub-section
(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. Subsection (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."

19. Similar issue in regard to
peaceful and forceful possession in terms
of sub-section 5 and 6 of Section 10 of the
Act cropped up before the Apex Court,
which was considered by it in case of
Gajanan
Kamlya
Patil
Vs.
Addl.
Collector & Comp. Auth. & Ors, JT 2014
(3) SC 2011, which followed the earlier
decision in case of Hari Ram (supra). In
yet another case, in Special Leave Petition
(C) No.17799 of 2015 (supra), the Apex
Court held after perusing the original
records that possession was not taken by
the competent authority or his authorized
representative by following procedure laid
down under Section 10(5) and Section
10(6) of the Act, 1976 declined to
interfere in the order impugned.

20. A Division Bench of this Court
in case of Nek Singh (supra), Ruknuddin
(supra), Ramchandra Pandey (supra), and
Ehsan (supra) was also of the view that
possession had been taken from tenure
holder without complying provision of
Section 10(5) and 10(6) of the Act, 1976.

21. Pertinently, in respect of
Saharanpur Development Authority, same
issue was considered in case of Rati Ram
Vs. State of U.P. and Others, 2018 (4)
ALJ 338, wherein this Court held as
under:-

"8.
The
'Dakhalnama'
a
certified copy whereof has been produced
before us does not even bear the
signatures of any attesting witness. We
find this to be a lapse and patent illegality
the benefit whereof has to be given to the
land holder in view of the Division Bench
judgment in the case of Mohd. Islam and
3 others v. State of U.P. and 2 others,
Writ Petition No. 15864 of 2015 decided
on 4th December, 2017. It was also a case
of District- Saharanpur. We extract
paragraph Nos. 44 to 47 of the said
judgment which are as under:

"44. Since, in the present
case, neither factum of taking actual
physical
possession
by
Competent
Authority under Ceiling Act has been
fortified by placing any document nor
factum of possession of Development
Authority at any point of time has been
shown, therefore, argument advanced by
learned Standing Counsel on the basis of
State of Assam (supra) will not help.
354 INDIAN LAW REPORTS ALLAHABAD SERIES

45. Viewed from the above
exposition of law we find in the present
case that no such exercise of issuing
notice under Section 10(6) of the Act,
1976 and thereafter execution of memo on
the spot had taken place which is
mandatory for ceiling authorities as
admittedly the original tenure-holder and
then his successors had never voluntarily
surrendered the possession of land. In the
absence
of
voluntary
surrender
of
possession of surplus land, the authorities
were required to proceed with forcible
possession. The document of possession
memo would not by itself evidence the
actual taking of possession unless it is
witnessed by two independent persons
acknowledging
the
act
of
forcible
possession. As discussed above in the
earlier part of this. judgment we are not
able to accept the alleged possession
memo worth calling a document as such
in the absence of certain requisites, nor
does it bear the details of witnesses who
signed the document. It bears mainly
signatures of Chackbandi Lekhpal, a
person taking possession and then the
document has been directed to be kept on
file. This is no way of taking forcible
possession nor, a document worth calling
possession memo. A mere issuance of
notification under Section 10(3) and
notice under Section 10(5) regarding
delivery of possession does not amount to
actual delivery of possession of land more
especially in the face of the fact that the
tenureholder had in fact not voluntarily
made surrender of possession of surplus
land and no proceeding under Section
10(6) had taken place.

46. Since, we have held
that possession memo dated 20.06.1993 is
not a possession memo and is a void
document
for
want
of
necessary
compliance under Section 10(6) of the
Act, 1976, the petitioners are entitled to
the benefit under Section 4 of the Repeal
Act, 1999 that came into force w.e.f.
20.03.1999.

47. We may also place on
record that respondents claim that
possession of land in question was handed
over
to
Saharanpur
Development
Authority pursuant to Government Order
dated 29.12.1984 but here also we find
that no material has been placed on
record to show that any such actual
physical possession was handed over to
Saharanpur Development Authority and
the said authority is in de facto possession
of land in dispute. Except bare averment
made in the counter-affidavit respondent
have not chosen to place anything on
record to support the stand that de facto
possession over land in dispute is that of
Saharanpur
Development
Authority.
Therefore even this stand has no legs to
stand and is rejected."

22. This Court in Writ C No. 31072
of 2009, Gayur and Another Vs. State of
U.P. and Others, decided on 20.08.2019
faced with a similar situation, wherein
respondent-State had only produced the
memo of possession/dakhalnama and
there was no other material to indicate
that land was legally transferred to the
Saharanpur Development Authority, held
that the ceiling proceeding stood lapse
and petitioners were entitled for land in
question, which has been declared surplus
land held as under:-

"Keeping in the mind the
principle laid down by the Supreme Court
and this Court, as indicated in the
authorities referred herein-before, we find
that in the counter affidavit the State has
taken a very general and vague stand
about the possession. In Paragraph-4 of
4 All. Ikrar & Ors. Vs. State of U.P. & Anr.
355
the counter affidavit of the State the only
averment made in this regard is that the
process server personally served the
notice under Section 10(5) of the Act,
1976 on 20th November, 1987. It is also
averred therein that "It is further stated
that
after
adopting
all
proceeding
according to law on the aforesaid
declared surplus land the possession of
the State Government has been taken on
31.11.1987". It is not mentioned in the
counter affidavit that the petitioners have
given voluntary possession after receiving
the notice under Section 10(5) of the Act,
1976. From the original record it was
evident that there was no material to
show that the petitioners have given
voluntary
possession
to
the
State
authorities after receiving the notice
under Section 10(5). If they had not given
the voluntary possession then the only
course open to the authorities was to take
forceful possession under Section 10(6) of
the Act, 1976. There is no material on the
record or averment made in the counter
affidavit to show that the forceful
possession was taken from the petitioners
under Section 10(6) of the Act, 1976. In
the counter affidavit filed on behalf of the
State, the name of the officer, who has
taken the possession, is not disclosed.
However, in the counter affidavit filed by
the Saharanpur Development Authority it
is stated that the Tehsildar has taken the
possession. As mentioned above, the only
document which is on the record to
indicate taking over the possession is a
memo dated 31st November, 1987. The
said date has been mentioned in several
paragraphs of the counter affidavits of the
State and the Saharanpur Development
Authority. The said document does not
inspire any confidence. There are only
thirty days in the month of November. So,
apparently 31st November is a wrong
date. As held by the Supreme Court in
Hari Ram (supra) and the directions
issued by the State Government in the
Directions,
1983
as
well
as
the
Government Order dated 29th September,
2015, we find that the possession has not
been taken in terms of the Directions,
1983 and the Government Order. The
Revenue Inspector and the Lekhpal are
not authorized to take possession as held
in a large number of cases mentioned
above.

As regards the stand of the State
that the possession has been handed over
to
the
Saharanpur
Development
Authority, we find that except the memo of
possession/ Dakhalnama, there is no
other material to indicate that the
possession was legally handed over to the
Saharanpur
Development
Authority.
Pertinently, in the Dakhalnama it is
recorded that the land is agricultural. We
find merit in the submission of the
petitioners that agricultural land cannot
be declared surplus. But this issue was
not raised seriously, hence we are not
recording any finding on this issue. In the
counter affidavit filed by the Saharanpur
Development
Authority
the
alleged
possession is stated to have been taken on
29th January, 2002 but no detail has been
mentioned regarding the construction,
which has been raised. As regards the
claim of the respondents that possession
of the land was handed over to the
Saharanpur Development Authority, we
find that the proceedings stood abated in
terms of section 4 of the Repeal Act,
therefore, any subsequent transfer is non
est. "

23. In case, in hand, only notice
under Section 10(5) of the Act was issued
to petitioners, but no voluntary possession
was given by them, as is evident from
356 INDIAN LAW REPORTS ALLAHABAD SERIES
original record to the State authorities. If,
voluntary possession was not given, then
only recourse open to the authorities, was
to take forcible possession under Section
10(6) of the Act, 1976. There is no
material on record or averment made in
the counter affidavit, nor it is case of the
State
functionaries
that
forcible
possession was taken from petitioners
under Section 10(6) of the Act, 1976. In
the counter affidavit, name of the officers,
who have taken possession, has not been
disclosed, and it is only stand of the State
that possession was taken by Tehsildar.
While, from perusal of original memo of
possession/dakhalnama, it is evident that
possession was taken by Tehsildar and
one Chandrapal Sharma, Lekhpal, and
there is no signature of any attesting
witness.

24. Thus, in view of judgment of the
Apex Court in Hari Ram (supra) and
directions issued by State Government in
Directions, 1983 as well as Government
Order dated 29.09.2015, we find that
possession has not been taken in terms of
the Directions, 1983 and Government
Order. The Tehsildar and Lekhpal are not
authorized person to take possession as
held in large number of cases mentioned
above.

25. In addition to above, as
discussed above, there is no material on
record
to
demonstrate
that
actual
possession was handed over to the
Saharanpur Development Authority on
19.02.2002 after possession having been
taken by the State authorities, as claimed
according
to
memo
of
possession/dakhalnama dated 31.07.1993
by the Tehsildar, who is not a competent
authority or a person authorized to take
possession in terms of Directions, 1983
and Government Order of 2015.

26. Further, the Development
Authority has also not filed any counter
affidavit despite being given sufficient
opportunity, nor their Counsel turned up
during the course of argument. The only
stand taken by State functionaries are that
notice u/s. 10(5) was served on wife of
tenure holder by process server on
24.08.1993, except the said fact, the State
had failed to establish that actual physical
possession over the vacant piece of land
was
taken,
as
the
memo
of
possession/dakhalnama
clearly
demonstrates that there is no signature of
the person delivering the possession, nor
of any attesting witness, which is in teeth
of the procedure laid down in case of Hari
Ram (supra) except this fact no averment
in
the
counter
affidavit
nor
any
submission on behalf of the State has
been made.

27. Collector, Saharanpur also,
while deciding the representation of the
petitioners has relied upon the possession
taken by the Tehsildar in the year, 1993
and
possession
subsequently
being
transferred
through
Saharanpur
Development Authority in the year 2002,
except this, he has failed to adjudicate on
the issue as to how Tehsildar was
authorized
or
competent
to
take
possession in terms of the Directions,
1983, which had been issued by the
Government u/s. 35 of the Act, 1976 and
has statutory flavour.

28. In view of the above, we are of
the considered opinion that if possession
has not been taken in terms of Section
10(5) and 10(6) of the Act, 1976,
4 All. Smt. Usha Rani Gupta & Ors. Vs. State of U.P. & Ors.
357
petitioners are entitled for the benefit
under Section 3 and 4 of the Repeal Act.

29. For the reasons stated above, we
find that the ceiling proceedings stood
lapse and petitioners are entitled for the
land in question, which has been declared
surplus. The order impugned dated
05.05.2014 is hereby quashed and writ
petition stands allowed.

30. Petitioners may apply before the
authorities for expunging name of State
Government from the revenue records and
mutating their names.

----------
(2019)12 ILR A357

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Writ C. No. 38597 of 2018

Smt. Usha Rani Gupta & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashish Kumar Singh, Manu Srivastava

Counsel for the Respondents:
C.S.C., Sri Bhanu Deo Pandey, Sri Devi
Prasad Mishra, Sri Ajit Kumar Singh, Sri
Nimai Das, Sri Amit Verma, Sri Brijendra
Kumar, Sri B.D. Pandey

A.