# Jawahar Lal Jaiswal v. State of U.P. And Ors

- **Citation:** (2019) 3 ILRA 1220
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-18
- **Case number:** Writ C No. 14817 of 1998
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jawahar-lal-jaiswal-v-state-of-u-p-and-ors-44648
- **Pages:** 14

## Headnote

Law-Urban
Land
(Ceiling
&
Regulation) Act, 1976 - Section 10 - no
documents to prove -Petitioner's possession
on excess land ever taken-neither voluntary
surrender u/s 10 (5) nor forceful possession
u/s
10
(6);
only
District
Magistrate
authorized-to
take
possession-proved
possession of Petitioner-benefit of Section 3
(a) of Repeal Act, 1999.

Writ Petition allowed (E-9)
List of cases cited: -

## Text

_Characters 0–39,850 of 46,177. This is a partial read: ask again with offset=39850 for what follows._

1220 INDIAN LAW REPORTS ALLAHABAD SERIES
have weighed on the minds of the
Authorities; and (ii) as has been stated by
the petitioner, the information to remove
the defects itself was received by the
College on 12.2.2015, then under no
circumstances,
could
the
petitionerinstitution have removed the defects
before the cut-off date i.e. before
31.1.2015. What is more, the endeavour
of the State Government should be to
grant aid to the institutions which are
recognised and running classes properly
and also taking examinations of the
students who were studying therein.

9. Right to education
is a
fundamental right as has been enshrined
under Article 21-A of the Constitution of
India. Instead of boosting education, the
State Government appears to be behaving
in a most arbitrary manner to deprive
institutions of the aids which are due to
them. In State of U.P. & Ors. Vs. Pawan
Kumar Divedi & Anr. reported in 2014
(9) SCC 692 and in Paripurna Nand
Tripathi & Ors. Vs. State of U.P. &
Ors. reported in 2015 (3) ADJ 567 (DB)
it has been held that it was the
fundamental right of every child to get
proper education.

10. Under such circumstances, the
order dated 4.3.2016 passed by the State
of Uttar Pradesh is quashed and a writ of
mandamus is being issued that the
petitioner-institution be brought in grantin-aid list forthwith and the grant be
provided to the College within three
months from the date of presentation of a
certified copy of this order.

11. The writ petition is, accordingly,
allowed.
----------
(2019)11ILR A1220

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

Writ C No. 14817 of 1998

Jawahar Lal Jaiswal ...Petitioner
Versus
State of U.P. And Ors. ...Respondents

Counsel for the Petitioner:
Sri R.K. Awasthi, Sri Ashish Jaiswal, Sri
Mansoor Ahmad, Sri Rahul Sripat, Sri
Sandeep Saxena

Counsel for the Respondents:
C.S.C., Sri Shashi Prakash Rai

A.
Land
Law-Urban
Land
(Ceiling
&
Regulation) Act, 1976 - Section 10 - no
documents to prove -Petitioner's possession
on excess land ever taken-neither voluntary
surrender u/s 10 (5) nor forceful possession
u/s
10
(6);
only
District
Magistrate
authorized-to
take
possession-proved
possession of Petitioner-benefit of Section 3
(a) of Repeal Act, 1999.

Writ Petition allowed (E-9)
List of cases cited: -
1. Shiv Ram Singh Vs St. Of U.P. & ors.,
(2015) (5) AWC 4918
2. St. Of Assam Vs Bhaskar Jyoti Sharma &
ors., (2015) (5) 321
3. St. Of U.P. Vs Hari Ram, (2013) (4) SCC
280
4. Mohd. Suhaif & anr. Vs St. Of U.P. & ors.,
(2019) (5) ADJ 764 (DB)

(Delivered by Hon'ble Rajeev Misra, J.)
3 All. Jawahar Lal Jaiswal Vs. State of U.P.& Ors.
1221

1. Petitioner Jawahar Lal Jaiswal
has filed present writ petition challenging
order
dated
18.09.1985
passed
by
respondent no.2, Competent Authority,
Urban Land Ceiling, Allahabad in Case
No. 452 of 1976 (State Vs. Jawahar Lal),
the order dated 14.07.1997 passed by
Respondent
No.3,
District
Judge,
Allahabad in Urban Ceiling Appeal
No.228 of 1994 (Jawahar Lal vs. State of
U.P. & another) dismissing appeal filed
by Petitioner under Section 33 of Urban
Land (Ceiling & Regulation) Act, 1976
(hereinafter referred to as Act 1976) and
also order dated 23.03.1998 passed by
Respondent
No.3,
District
Judge,
Allahabad dismissing review application
filed by Petitioner against order dated
14.07.1997.
Apart
from
aforesaid,
Petitioner has also prayed for issue of
appropriate direction to Respondent No.3
to decide appeal filed by Petitioner and
further not to give effect to order dated
18.09.1985 and also restrain Respondents
from interfering with possession of
Petitioner over land in dispute.

2. It transpires from record that
Petitioner is lease holder of premises No.
4 (Old No.) now premises no. 6 (New
No.) Drummond Road, Allahabad.

3. Act of 1976, came into force on
17.2.1976. By means of Act 1976, a
ceiling limit regarding land which can be
held by a Tenure Holder was provided.
Section 4 of Act 1976 provided for
different ceiling limits in different Urban
Agglomerations
falling
in
different
categories. Section 6 mandates that every
person who is holding land in excess of
concerned ceiling limit shall file an
statement before competent authority
regarding land held by him. After the
statement has been filed by Tenure
Holder, competent authority under section
6 of Act 1976 after such survey, as it may
deem fit to make, shall prepare a draft
statement in respect of person who has
filed
the
statement.
Thereafter
in
compliance of section 8 of Act 1976,
Competent Authority is required to issue a
draft statement to Tenure Holder as
regards vacant land held by him in excess
of ceiling limit. In turn by virtue of sub
section (4) of section 8, Tenure Holder is
required to file his objections to draft
statement within a period of 30 days from
date of service of draft statement/notice
under section 8 of Act 1976. After
disposal of objections preferred by Tenure
Holder, Competent Authority is required
to decide the same. Thereafter as per
section 9 of Act 1976, Competent
Authority is required to prepare final
statement determining vacant land held
by a Tenure Holder in excess of ceiling
limit. Section 9 further provides that final
statement shall be served on Tenure
Holder as per the procedure provided
under section 8 (3) of Act 1976. Section
10 of Act 1976 contemplates that after
service of final statement prepared under
section 9 of Act 1976, Competent
Authority shall cause a notification to be
published in Official Gazette of the State
concerned regarding land held by such
person in excess of ceiling limit. The
notification is to further state that such
vacant land is to be acquired by
concerned State Government and claims
of all person interested in such vacant
land may be made by them personally or
by an Agent giving particulars of the
nature of their interests in such land. Sub
section (2) of section 10 provides for
disposal of objections preferred by such
person who claims interest in the land
proposed to be acquired. Sub section (3)
of section 10 contemplates deemed
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
acquisition of excess vacant land of Tenure
Holder and vesting of same in the State
Government, free from all encumbrances.
Sub section (4) of Section 10 puts a rider on
the Tenure Holder whose land has been
declared as excess vacant land or any other
person not to transfer any excess vacant land
or part thereof by way of sale, mortgage, gift,
lease or otherwise. Sub section (5) of section
10 provides that after the land declared as
excess-vacant land has vested in State
Government, Competent Authority may by
notice in writing order any person who may
be in possession of excess-vacant land
declared surplus, to surrender or deliver
possession thereof to State Government or to
any person duly authorised by State
Government in this behalf within 30 days
from the date of service of notice issued
under section 10 (5). Thus, section 10 (5) of
Act 1976 contemplates voluntary surrender
of possession upon notice by a Tenure
Holder. Sub Section (6) of section 10
provides that upon failure to comply with an
order made under sub section (5) of section
10 i.e. failure to surrender possession
voluntarily,
Competent
Authority
may
forcibly take possession of land declared as
excess-vacant land. Section 11 of Act 1976,
provides for payment of compensation in
lieu of land acquired upon declaration as
excess-vacant land. Section 12 provides for
the constitution of Urban Land Tribunal and
an appeal to Urban Land Tribunal against an
order passed by Competent Authority under
section 11 of Act 1976. Section 33 of Act
1976 provides for an appeal against an order
passed by competent authority except an
order passed under section 11 or under subsection (1) of Section 30.

4. Accordingly, as per mandate of
Act 1976, Petitioner submitted a draft
statement
dated
30.09.1976
before
Respondent No.2, Competent Authority,
Urban Land Ceiling, Allahabad, in respect
of land held by him. Petitioner also filed
an objection dated 30.09.1976 stating
therein that no part of land held by
petitioner
can
be
declared
surplus.
However, after filing draft statement and
objections referred to above, petitioner
appears
to
have
abandoned
the
proceedings pending before respondent
no.2, Competent Authority, Urban Land
Ceiling, Allahabad. As a result of the
aforesaid, respondent no.2, Competent
Authority, Urban Land Ceiling, Allahabad
passed an ex-parte order dated 26.04.1984
whereby 6181.37 sq. mtrs. of land belong
to petitioner was declared, excess vacant
land. At this state, one Rajendra Prasad
filed an application dated 25.07.1984
praying
for
recall
of
order
dated
26.04.1984 on the ground that he has
interest in land declared as excess vacant
land. The aforesaid application dated
25.07.1984 came to be rejected vide order
dated 25.07.1984 passed by respondent
no.2, Competent Authority, Urban Land
Ceiling, Allahabad. Feeling aggrieved by
aforesaid orders dated 26.04.1984 and
25.07.1984, petitioner filed an application
dated 23.02.1985 praying for recall of exparte
orders
dated
26.04.1984
and
25.07.1984. Subsequently petitioner filed
an
application
dated
06.09.1985
supported by an affidavit purported to be
under Order IX Rlue 13 CP.C praying for
recall of ex-parte orders dated 26.04.1984
and 25.07.1984 and also for restoration of
case to its original number and status.
Respondent No.2, Competent Authority,
Urban Land Ceiling, Allahabad, passed
order dated 09.09.1985 whereby ex-parte
orders dated 26.04.1984 and 25.07.1984
were recalled and Ceiling Case was fixed
for
18.09.1985
for
objection
and
evidence. Again, petitioner did not appear
before respondent no.2 and consequently,
3 All. Jawahar Lal Jaiswal Vs. State of U.P.& Ors.
1223
respondent no.2, Competent Authority,
Urban Land Ceiling, Allahabad passed
order dated 18.09.1985 whereby earlier
order
dated
25.07.1984
was
again
affirmed and restored. Consequently
respondent no.2, Competent Authority,
Urban Land Ceiling, Allahabad issued
final statement dated 18.11.1988 whereby
6181.37 sq. mtrs. of land belonging to
Petitioner was declared as excess-vacant
land. Against order dated 25.07.1984,
Petitioner preferred an appeal before
Appellate Authority i.e. Respondent No.3,
District Judge, Allahabad. Same was
registered as Appeal No. 228 of 1994
(Jawahar Lal Jaiswal Vs. State of U.P. and
another). Respondent No.3, District Judge
Allahabad vide order dated 14.07.1991
dismissed appeal filed by Petitioner.
Being
aggrieved
by
order
dated
14.07.1991 Petitioner filed a review
application dated 05.08.1997 in terms of
Section 151 C.P.C. before Appellate
Authority/respondent no.3. The review
application filed by petitioner came to be
dismissed as not maintainable vide order
dated 23.03.1998 passed by Appellate
Authority, i.e., Respondent No.3, District
Judge, Allahabad. Being aggrieved by
orders dated 18.09.1985, 14.07.1991 and
23.03.1998 referred to above, petitioner
has now come to this Court by means of
present writ petition.

5. Instant writ petition came up for
admission on 02.05.1998 and a learned
Single Judge passed following interim
order:

" Sri H. P. Tripathi, learned
Standing Counsel prays for and is
granted one month time to file counter
affidavit.
Learned
counsel
for
the
petitioners prays for and is granted two
weeks time to file rejoinder affidavit. List
the petition for final hearing / disposal if
possible on 21.07.1998.

Till further orders of this Court,
if the petitioner is still in possession over
the plots in dispute, he shall not be
dispossessed."

(Emphasis added)

6. A counter affidavit dated
11.05.2018 was filed on behalf of
Respondents Nos. 1 and 2. In paragraph 8
of counter affidavit it has been pleaded
that notification under Section 10 (1) was
made
on
06.05.1989
followed
by
notification
dated
23.02.1991
under
Section 10 (3) of Act 1976. It is thus
submitted that land of petitioner declared
as excess-vacant land got vested in State
Government without any encumbrance.
Notice under Section 10 (5) of Act 1976
was issued to petitioner on 23.03.1993. In
view
of
Government
Order
dated
11.12.1996 land of petitioner declared as
excess-vacant land is alleged to have been
handed
over
to
Respondent
No.4,
Allahabad
Development
Authority,
Allahabad. In Paragraph 12 of the counter
affidavit, it has been averred that a letter
dated 17.11.2017 has been written by
District Magistrate, Allahabad to the
State-Government to give instructions for
taking action under Section 10 (6) of Act,
1976.

7. Writ petition again came up for
admission on 18.05.2018 and this time a
Division Bench passed the following
order:

"This writ petition remained
pending for 20 years and on the last
occasion when it came up before this
Bench on 04.05.2018, we issued a
direction to produce the original record
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
and show cause as to why the counter
affidavit had not been filed by the
respondent-State till date.

Today a counter affidavit on
behalf of the respondent-State has been
filed
through
the
Tehsildar
Sadar,
Allahabad which makes a very peculiar
discloser in paragraph-12 to the effect
that the District Magistrate, Allahabad
has sent a letter on 17.11.2017 to the
State Government to give instructions for
taking action under Section 10(6) of the
Urban Land Ceiling Act, 1976.

The
written
instruction
produced
by
the
learned
Standing
Counsel also indicates that such files
where action had not been taken under
the provisions of Section 10 (6) of the Act,
instructions have been sought from the
State Government for taking possession.

We
are
surprised
at
the
functioning of the District Magistrate,
Allahabad under whose signature such
instructions have been dispatched to the
learned Standing Counsel, inasmuch as
once the Act has been repealed in the year
1999, prima facie we fail to understand as
to under which law and provision the
District Magistrate has now sought
permission from the State Government to
take possession.

The learned Standing Counsel
submits that there is a stay order in the
present writ petition since in the year
1998, which recites till further orders, if
the petitioner is in possession, then he
shall not be dispossessed. The writ
petition was dismissed for want of
prosecution on 23,03.2009 and the
interim order was vacated and the
petition was restored on 08.04.2009. It
was again dismissed in default on
29.06.2009
and
was
restored
on
25.11.2009. It is after almost 9 years
when the writ petition came to be listed in
the year 2018.

There is one interesting fact
which is disclosed from an abatement
application filed by the petitioner himself
being application no. 343024 of 2011. In
this application it is disclosed that the
appeal filed against declaration of
surplus by the Prescribed Authority
before District Judge was dismissed as
the delay condonation application was
rejected on 14th July, 1997.

Prior
to
this,
it
is
not
understood
as
to
how
the
State
Government issued a letter on 21.12.1994
for grant of free hold rights over the land
in question to the petitioner presumably
under the impression that the land was
not declared surplus. It is further
disclosed in the said affidavit appended to
the said application that the petitioner's
request for renewal of the lease was
recommended by the Prabhari Adhikari
(Nazul), Allahabad on 01.03.1995.

It is in continuity of these
proceedings that the appeal of the
petitioner had been dismissed by the
learned District Judge, where after the
present writ petition has been filed and an
interim order was passed on 02.05.1998
referred to herein above.

The petitioner was again put to
notice of resumption on 9th September,
2005 against which the petitioner filed
Writ Petition No. 76849 of 2005 in which
an observation was made through an
interim order that in the circumstances,
the State Government may take a decision
but actual possession will not be
disturbed on the spot pursuant to this
order till the next date of listing. The said
writ petition is stated by the learned
counsel for the petitioner to have been
dismissed in default.
3 All. Jawahar Lal Jaiswal Vs. State of U.P.& Ors.
1225

We are surprised that the
instructions of the District Magistrate,
Allahabad which is countersigned by the
Authority
Urban
Land
Ceiling,
Allahabad, nowhere indicates any of
these proceedings and orders referred to
herein above.

We are therefore satisfied that
the counter affidavit has been filed in a
cavalier fashion and therefore it requires
the Court to call upon the District
Magistrate to file his personal affidavit in
this regard explaining the circumstances
in which the instructions have been
sought from the State Government and
also ensure that the records are produced
before this Court by the next date fixed.

The matter shall come up on
23rd May, 2018. "

8. In the light of facts stated in the
counter-affidavit referred to above and
observations made by Division Bench,
District Magistrate, Allahabad filed his
personal affidavit. In paragraph 5 of
personal affidavit of District Magistrate,
Allahabad, it has been stated that after
Repeal Act of 1999 proceedings under
Section 10 (6) of the Act of 1976 cannot
be undertaken. In respect of letter dated
17.11.2017 sent by District Magistrate,
Allahabad
to
State-Government
for
seeking instructions to take action under
Section 10 (6) of Act, 1976, it was stated
in paragraph 7 that District-Magistrate
Allahabad vide letter dated 17.11.2017
intended to seek instructions/guidelines
from State Government in those cases
where documents pertaining to voluntary
possession transfers are not available and
proceedings under Section 10 (6) of Act
of 1976 have not been undertaken. In
paragraph 10 of the aforesaid affidavit, it
is stated that after Repeal Act of 1999,
proceedings under Section 10 (6) of Act
of 1976 cannot be undertaken. However,
in paragraph 15 of aforesaid affidavit, it is
stated that possession of excess-vacant
land belonging to Petitioner has been
given
to
Allahabad
Development
Authority and possession of Allahabad
Development Authority, Allahabad over
land of petitioner declared as excessvacant land is evident from letters of the
Secretary,
Allahabad
Development
Authority, bearing Nos. 16, 17, 18 dated
14.05.2018. Reliance was also placed
upon judgement of this Court in Shiv
Ram Singh Vs. State of U.P. And
others, 2015 (5) AWC 4918 and that of
Apex Court in State of Asam Vs.
Bhaskar Jyoti Sharma and others, 2015
(5) 321, in support of the proposition that
once possession has been taken, then
tenure-holder cannot seek benefit of
Repeal Act, 1999. It is immaterial
whether such possession has been taken
lawfully or not. Since petitioner is not in
possession over land declared as excessvacant land, petitioner is not entitled to
the relief prayed for in present writ
petition.

9.

A
counter-affidavit
dated
10.01.2019 has been filed by Respondent
no.4, Allahabad Development Authority,
Allahabad.
However,
in
the
entire
counter-affidavit
which
is
of
nine
paragraphs, no categorical averment has
been made that land of petitioner declared
as excess-vacant land has been handed
over
to
Allahabad
Development
Authority, Allahabad and consequently,
aforesaid authority is in possession over
the land of Petitioner declared as excessvacant land under Act, 1976.

10. Petitioner has filed rejoinder
affidavit
categorically
denying
the
averments made in counter-affidavit dated
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
11.05.2018 filed by State-Respondents
no. 1 and 2.

11.
 Pursuant
to order
dated
18.05.2018, the matter came up before the
Bench on 23.05.2018 and Bench passed
following order:

"The District Magistrate has
filed his personal affidavit today. Learned
counsel for the petitioner may file a reply
to the same. Further from the affidavit of
the District Magistrate we find that
instructions were sought from the State
Government
vide
letter
dated
17th
November, 2017 from the Principal
Secretary,
Housing
and
Urban
Development,
Government
of
Uttar
Pradesh (Anubhag-6) Lucknow.

Learned Standing Counsel shall
directly communicate with the said
Principal Secretary calling upon him to
inform the Court as to what response has
been given by him to the District
Magistrate. The District Magistrate may
also inform the Court as to what response
has been received by him in this regard
and appropriate affidavit to that effect
shall be filed by the next date fixed.

List in the next cause list.

The record of the case shall be
produced whenever the matter is listed
next."

(Emphasis added.)

12. In compliance of order dated
23.05.2018, original record has been
produced
by
Miss.
Subhash
Rathi,
Additional Chief Standing Counsel in
Court on 06.08.2019.

13. We have heard Mr. Mansoor
Ahmad, learned counsel for petitioner,
Miss. Subhash Rathi, learned Additional
Chief Standing Counsel for respondent
nos. 1, 2 and 3 and Mr. S. P. Rai, learned
counsel representing Respondent No. 4.

14. From the facts as noted herein
above only two questions arise for
determination in this writ petition.

I. Whether possession of land of
petitioner declared as excess-vacant land
was ever taken by Prescribed Authority
and thereafter transferred to Respondent
no.4, Allahabad Development Authority,
Allahabad and consequently, the aforesaid
authority is in actual physical possession
of the same.

II.
Whether
Petitioners
are
entitled to the benefit of Repeal Act of
1999 as possession of land of petitioners
declared as excess-vacant land was never
taken by District-Magistrate Allahabad
under Section 10 (5) or Section 10 (6) of
Act of 1976.

15. With regard to the first question,
we find that there are contradictory
pleadings on record. As noted above,
District-Magistrate, Allahabad in his
personal affidavit dated 23.05.2018 has
stated that possession of excess-vacant
land of petitioner has been given to
Allahabad
Development
Authority,
Allahabad. It has further been stated that
possession of Allahabad Development
Authority,
Allahabad
over
land
of
petitioner declared as excess-vacant land
is evident from the letters of Secretary,
Allahabad
Development
Authority
bearing
nos.
16.17
and
18
dated
14.05.2018. However, personal affidavit
of District-Magistrate does not mention
the date on which possession over land of
petitioner declared as excess-vacant land
was taken by him nor the same contains a
recital whether possession was voluntarily
3 All. Jawahar Lal Jaiswal Vs. State of U.P.& Ors.
1227
surrendered by petitioners in terms of
section 10 (5) of Act of 1976 or it was
forcibly taken under Section 10(6) of Act
1976. In the counter affidavit filed by
Respondent
No.4,
Allahabad
Development Authority, Allahabad it has
nowhere been stated that possession of
land of petitioners declared as excessvacant
land,
was
handed
over
to
Allahabad
Development
Authority,
Allahabad and consequently, they are in
possession over the same. Thus, we have
no hesitation to hold that in absence of
any categorical recital in the personal
affidavit of District-Magistrate, Allahabad
in the light of facts noted above,
possession
over
land
of
petitioner
declared as excess-vacant land was never
taken
by
voluntary
surrender
of
possession by petitioner in terms of
section 10(5) of Act 1976 nor the same
was forcibly taken over in terms of
section 10(6) of Act 1976 and hence its
transfer
to
Allahabad
Development
Authority is out of question.

16. With regard to second point of
determination, it may be stated here that
this controversy is no longer res-integra
and stands concluded by judgement of
Apex Court in State of U.P. Vs. Hari
Ram, 2013 (4) SCC 280. Court in
paragraphs 21, 22, 23, 24, 25, 26, 27, 28,
29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 42
has said:

21. Let us test the meaning of
the expressions "deemed to have been
acquired" and "deemed to have been
vested absolutely" in the above legal
settings. The expressions "acquired" and
"vested" are not defined under the Act.
Each word, phrase or sentence that we
get in a statutory provision, if not defined
in the Act, then is to be construed in the
light of the general purpose of the Act. As
held by this Court in Organo Chemical
Industries v. Union of India [(1979) 4
SCC 573 : 1980 SCC (L&S) 92] that a
bare mechanical interpretation of the
words and application of a legislative
intent devoid of concept of purpose will
reduce
most
of
the
remedial
and
beneficial legislation to futility. Reference
may also be made to the judgment of this
Court in Directorate of Enforcement v.
Deepak Mahajan [(1994) 3 SCC 440 :
1994 SCC (Cri) 785] . Words and
phrases, therefore, occurring in the
statute are to be taken not in an isolated
or detached manner, they are associated
on the context but are read together and
construed in the light of the purpose and
object of the Act.

22. This Court in S. Gopal
Reddy v. State of A.P.[(1996) 4 SCC 596 :
1996 SCC (Cri) 792] held: (SCC p. 607,
para 12)

"12. It is a well-known rule of
interpretation of statutes that the text and
the context of the entire Act must be
looked into while interpreting any of the
expressions used in a statute. The courts
must look to the object which the statute
seeks to achieve while interpreting any of
the provisions of the Act. A purposive
approach for interpreting the Act is
necessary."

23. In Jugalkishore Saraf v. Raw
Cotton Co. Ltd. [AIR 1955 SC 376] , S.R.
Das, J. stated: (AIR p. 381, para 6)

"6. ... The cardinal rule of
construction of statutes is to read the
statute literally, that is by giving to the
words used by the legislature their
ordinary,
natural
and
grammatical
meaning. If, however, such a reading
leads to absurdity and the words are
susceptible of another meaning the court
may adopt the same. But if no such
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
alternative construction is possible, the
court must adopt the ordinary rule of
literal interpretation."

24. The expression "deemed to
have been acquired" used as a deeming
fiction under sub-section (3) of Section 10
can only mean acquisition of title or
acquisition of interests because till that
time the land may be either in the
ownership of the person who held that
vacant land or to possess such land as
owner or as a tenant or as mortgagee and
so on as defined under Section 2(1) of the
Act. The word "vested" has not been
defined in the Act, so also the word
"absolutely". What is vested absolutely is
only the land which is deemed to have
acquired and nothing more. The word
"vest" has different meaning in different
context; especially when we examine the
meaning of "vesting" on the basis of a
statutory
hypothesis
of
a
deeming
provision which Lord Hoffmann in
Customs
and
Excise
Commissioners
v.Zielinski Baker and Partners Ltd.
[(2004) 1 WLR 707 : (2004) 2 All ER 141
(HL)] , All ER at para 11 described as
"heroic piece of deeming".

25. The word "vest" or "vesting"
has different meanings. Legal Glossary,
published by the Official Language
(Legislative) Commission, 1970 Edn. at p.
302:

"Vest.--(1) To give a person a
legally fixed, immediate right or personal
or future enjoyment of (an estate), to
grant, endow, clothe with a particular
authority, right of property, (2) To become
legally vested; (TP Act)

Vesting order.--An order under
statutory authority whereby property is
transferred
to
and
vested,
without
conveyance in some person or persons;

26.Black's Law Dictionary (6th
Edn.), 1990 at p. 1563:

"Vested.--Fixed;
accrued;
settled; absolute; complete. Having the
character or given the rights of absolute
ownership; not contingent; not subject to
be defeated by a condition precedent.
Rights
are
'vested'
when
right
to
enjoyment present or prospective, has
become property of some particular
person or persons as present interest;
mere expectancy of future benefits, or
contingent interest in property founded on
anticipated continuance of existing laws,
does not continue 'vested right'. Vaughn v.
Nadel [228 Kan 469 : 618 P 2d 778
(1980)] . See also Accrue; Vest, and
specific types of vested interests, infra."

27.Webster's
Third
New
International Dictionary, of the English
Language unabridged, Vol. III S to Z at p.
2547 defines the word "vest" as follows:

"'vest' vest ... To place or give
into the possession or discretion of some
person or authority [the regulation of the
waterways ... to give to a person a legally
fixed immediate right of present or future
enjoyment of (as an estate) (a deed that
vests a title estate in the grantee and a
remainder in his children)

(b) to grant, endow, or clothe
with a particular authority right or
property ... to put (a person) in possession
of land by the feudal ceremony of
investiture ... to become legally vested
(normally) title to real property vests in
the holder of a property executed deed.]"

28. "Vest"/"vested", therefore,
may or may not include "transfer of
possession",
the
meaning of
which
depends on the context in which it has
been placed and the interpretation of
various other related provisions.

29. What is deemed "vesting
absolutely" is that "what is deemed to
have acquired". In our view, there must be
express words of utmost clarity to
3 All. Jawahar Lal Jaiswal Vs. State of U.P.& Ors.
1229
persuade a court to hold that the
legislature intended to divest possession
also, since the owners or holders of the
vacant land are pitted against a statutory
hypothesis. Possession, there is an adage
is "nine points of the law". In Beddall v.
Maitland[(1881) 17 Ch D 174 : (1881-85)
All ER Rep Ext 1812] Sir Edward Fry,
while speaking of a statute which makes a
forcible entry an indictable offence, stated
as follows: (Ch D p. 188)

"... This statute creates one of
the great differences which exist in our
law between the being in possession and
the being out of possession of land, and
which gave rise to the old saying that
possession is nine points of the law. The
effect of the statute is this, that when a
man is in possession he may use force to
keep out a trespasser; but, if a trespasser
has gained possession, the rightful owner
cannot use force to put him out, but must
appeal to the law for assistance."

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 the hands of a 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. [(1977) 1
SCC 155] , 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 meanings 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. Kalyan [(2000) 8 SCC
99] 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. Charlton [(1878) 4
QBD
104
(CA)]
: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 authorisation cannot however
but be termed to be a contingent event. To
'vest', cannot be termed to be an
executory devise. Be it noted however,
that 'vested' does not necessarily and
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
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 subsection (1) and ending with the date
specified in the declaration made in subsection (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 that 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 authorised 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) of
Section 10, there is no necessity of using
the expression "where any land is vested"
under sub-section (5) of Section 10.
Surrendering or transfer of possession
under sub-section (3) of 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) of Section 10 to
surrender or deliver possession. Subsection (5) of Section 10 visualises 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 sub-section (5) of Section 10. Subsection (6) of 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 to only in a
situation which falls under sub-section (6)
3 All. Jawahar Lal Jaiswal Vs. State of U.P.& Ors.
1231
and not under sub-section (5) of 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), then "forceful
dispossession" under sub-section (6) of
Section 10.

37. The requirement of giving
notice under sub-sections (5) and (6) of
Section 10 is mandatory. Though the word
"may" has been used therein, the word
"may" in both the sub-sections has to be
understood as "shall" because a court
charged with the task of enforcing the
statute needs to decide the consequences
that the legislature intended to follow
from
failure
to
implement
the
requirement. Effect of non-issue of notice
under sub-section (5) or sub-section (6) of
Section 11 is that it might result in the
landholder being dispossessed without
notice, therefore, the word "may" has to
be read as "shall".

39.
The
abovementioned
directives make it clear that sub-section
(3) takes in only de jure possession and
not de facto possession, therefore, if the
landowner is not surrendering possession
voluntarily under sub-section (3) of
Section 10, or surrendering or delivering
possession after notice, under Section
10(5) or dispossession by use of force, it
cannot be said that the State Government
has taken possession of the vacant land.

42. The mere vesting of the land
under sub-section (3) of Section 10 would
not confer any right on the State
Government to have de facto possession
of the vacant land unless there has been a
voluntary surrender of vacant land before
18-3-1999. The State has to establish that
there has been a voluntary surrender of
vacant land or surrender and delivery of
peaceful possession under sub-section (5)
of Section 10 or forceful dispossession
under sub-section (6) of Section 10. On
failure to establish any of those situations,
the landowner or holder can claim the
benefit of Section 4 of the Repeal Act. The
State Government in this appeal could not
establish any of those situations and
hence the High Court is right in holding
that the respondent is entitled to get the
benefit of Section 4 of the Repeal Act."

17. However, Mrs. Subhash Rathi,
learned
Additional
Chief
Standing
Counsel has tried to urge that under
Scheme of Act 1976 once vesting has
taken
place
in
favour
of
StateGovernment under Section 10(3) of Act
1976 then in that event by operation of
law State-Government becomes absolute
owner of land declared as excess-vacant
land free from all encumbrances. In such
eventuality question of possession is only
symbolic. She further submits that part of
land belonging to petitioner was declared
as excess-vacant land vide order dated
26.04.1989/18.09.1985
passed
by
Respondent no.2, Competent Authority,
Urban Land Ceiling Allahabad. Against
order
dated
18.09.1985,
petitioner
preferred an appeal which was dismissed
by Appellate Authority, i.e. Respondent
NO.3, District Judge, Allahabad vide
order dated 14.07.1997. Against order
dated 14.07.1997, Petitioner filed a
review
application
which
was
also
dismissed vide order dated 23.03.1998.
Thereafter, the present writ petition was
filed. There is nothing on record to show
that Petitioner was in actual physical
possession over land declared as excessvacant land from 1989 to 01.05.1998.