# Jor Singh @ Chhote Lal v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 405
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-27
- **Case number:** Writ C No. 36691 of 2004
- **Bench:** Siddhartha Varma, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jor-singh-chhote-lal-v-state-of-u-p-ors-49834
- **Pages:** 10

## Headnote

406 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Sri Abhinava Krishna Srivastava

A. Ceiling Law - Urban Land (Ceiling and
Regulation) Act, 1976 - Sections 8(4) &
10(6) - Surplus land - Not taking
possession thereof - Effect - Notice, how
far necessary before taking action u/s
10(6) - Held, even though there is no
requirement of a notice before action is
taken u/s 10(6), but as per the Supreme
Court decision in 2013 (4) SCC 280
(paragraph 37) a notice before action is
taken under Section 10(6) of the Act of
1976 is mandatory - When there was no
notice u/s 10(6), transfer of possession
also could not have taken place - High
Court commanded that the petitioner may
not be dispossessed from the land, in
question. (Para 25, 26 and 27)

Writ petition allowed. (E-1)

List of Cases cited :-

## Text

3 All. Jor Singh @ Chhote Lal Vs. State of U.P. & Ors.
405
of such premises have not been paid, nor
shall the licensee demand record of last
paid bills of other portion(s) from such
applicants."

15. It is admitted case of the
respondent no. 3 that there are no dues
specific to the shop in question occupied by
the petitioner. The dues which are alleged
were
against
M/s
Rajasthan
Thread,
Azamul Khan, Sri Sharda Pd Singh,
Mohiuddin Ahmed. Those persons are
stated to have no connection with the shop
in question occupied by the petitioner.

16. If there were dues against the
aforesaid persons as alleged by respondent
nos. 2 and 3, then they could have initiated
proceedings for recovery of the dues
against the defaulting consumers in terms
of sub-clause (f) (v) of Clause 4.3 of the
Code, 2005.

17. Under sub-clause (h) of Clause
4.3 of the Code, 2005, it has been mandated
that licensee shall not refuse electric
connection to an applicant on the ground
that dues on other portions of such
premises have not been paid, nor shall the
licensee demand record of last paid bills of
other portions from such applicants. The
counsel for the respondents have not been
able to produce any material as to any dues
specifically to the premises occupied by the
petitioner.

18. Therefore, in view of the scheme
as
enumerated
from
the
aforesaid
provisions of the Act and the Code, the
applicantion of the petitioner for electric
connection in the specific premises in
question occupied by the petitioner cannot
be rejected by the respondent nos. 2 and 3
and instead it needs to be considered and
processed by the respondent nos. 2 and 3 in
accordance with law.

19. For all the reasons aforestated,
this writ petition is finally disposed of with
a direction to the respondent no.3-Sub
Divisional
Officer,
Urban
Electricity
Distribution Sub Division, Hathua Market,
Varanasi to consider the application of the
petitioner for new electric connection and
take appropriate decision in accordance
with law within four weeks from the date
of submission of a certified copy of this
order,
after
affording
reasonable
opportunity of hearing to the petitioner and
the owner of the building.

20. It is made clear that any of the
observations made in the body of this order
shall not be treated as a finding on
landlord-tenant relationship between the
landlord of the building, who is not before
us, and the petitioner.
----------
(2023) 3 ILRA 405
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.03.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE AJIT SINGH, J.

Writ C No. 36691 of 2004

Jor Singh @ Chhote Lal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri K.K. Tripathi, Sri Ram Dayal Tiwari, Sri
Subhash Chandra Yadav, Sri Vaibhav
Goswami, Sri. M.D. Singh Sekhar (Sr.
Advocate)

Counsel for the Respondents:
406 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Sri Abhinava Krishna Srivastava

A. Ceiling Law - Urban Land (Ceiling and
Regulation) Act, 1976 - Sections 8(4) &
10(6) - Surplus land - Not taking
possession thereof - Effect - Notice, how
far necessary before taking action u/s
10(6) - Held, even though there is no
requirement of a notice before action is
taken u/s 10(6), but as per the Supreme
Court decision in 2013 (4) SCC 280
(paragraph 37) a notice before action is
taken under Section 10(6) of the Act of
1976 is mandatory - When there was no
notice u/s 10(6), transfer of possession
also could not have taken place - High
Court commanded that the petitioner may
not be dispossessed from the land, in
question. (Para 25, 26 and 27)

Writ petition allowed. (E-1)

List of Cases cited :-

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

2. Harinam Singh & ors. Vs St. of U.P.; 2018 (4)
ADJ 749

(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Ajit Singh, J.)

1. This writ petition has been filed
with a prayer that the surplus land
comprised in Gata No. 61 areas 204.8
square meter, Gata No. 219 areas 8106.10
square meters, Gata No. 220 areas 1638.80
square meters, Gata No.62 areas 1229.10
square meters, Gata No. 63 areas 4199.10
square meters, Gata No. 64 areas 13127.37
square meters and Gata No. 61 areas
1024.25
square
meters
of
village
Teeklapura, Majra Bingawan, Pargana and
Tehsil and District- Kanpur Nagar may be
entered in the Khataunis in the name of the
petitioner. A further prayer has been made
that the possession of the total area of
30512.63 sq. meter contained in Gata No.
61 areas 204.8 square meter, Gata No. 219
areas 8106.10 square meters, Gata No. 220
areas 1638.80 square meters, Gata No.62
areas 1229.10 square meters, Gata No. 63
areas 4199.10 square meters, Gata No. 64
areas 13127.37 square meters and Gata No.
61 areas 1024.25 square meters of village
Teeklapura, Majra Bingawan, Pargana and
Tehsil and District - Kanpur Nagar (herein
after referred to as ''the land in question)
may not be taken away from the petitioner.

2. The petitioner's case is that when
the petitioner's predecessor-in-interest, and
thereafter the petitioner, had remained in
possession over the land in question which
was earlier declared surplus and which was
never taken away from the petitioner, then
the Ceiling Authorities were wrongly
treating the land as that of the State.

3. Learned counsel for the petitioner
has stated that the Khasras of the year
1398F to 1401F(annexure 3 to the writ
petition) and thereafter the khasras of the
year
1420F(Annexure
SA-3
to
the
supplementary affidavit filed on 7.2.2017)
would go to indicate that the petitioner's
predecessor-in-interest and thereafter the
petitioner had continued to be in possession
over the land in question.

4. Learned counsel for the petitioner
has submitted that if under the Urban Land
(Ceiling
and
Regulation) Act,
1976,
(hereinafter referred to as ''the Act of
1976'), the land in question was declared
surplus under Section 8(4) of the Act of
1976, and the possession of the land had
not been taken over on or before the
commencement of the Urban Land (Ceiling
and
Regulation)
Repeal
Act,
1999
(hereinafter referred to as ''the Act of
1999'),
the
petitioner
shall
not
be
dispossessed in pursuance of any orders
3 All. Jor Singh @ Chhote Lal Vs. State of U.P. & Ors.
407
whatsoever of the Ceiling Authorities.
Since the learned counsel for the petitioner
has read out Section 3 of the Act of 1999,
the same is being reproduced here as
under:-

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

(a) the vesting of any vacant land
under sub-section (3) of Section 10,
possession of which has been taken over
the State Government or any person duly
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 judgement
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
sub-section(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.

5. Learned counsel for the petitioner,
therefore, has submitted that since the
petitioner had continued to be in physical
possession of the aforesaid khatas, which
were earlier declared surplus under the Act
of 1976, because of the coming of the Act
of 1999, the petitioner shall continue to be
the owner of the land in question and the
petitioner
shall
continue
to
be
in
possession.

6. In the instant case, learned counsel
for the petitioner has stated that the
petitioner
whose
predecessor-in-interest
was Sri Bheekhu son of Deshraj and who
was the owner in possession over the land
in question, at no point of time, was
dispossessed in pursuance of any of the
orders passed by the Ceiling Authorities.

7. In the paragraph no. 13 of the writ
petition, the petitioner has stated that the
predecessor-in-interest, in fact, had no
knowledge about any of the orders being
passed under Section 8(3) and 8(4) of the
Act of 1976 and in fact the predecessor-ininterest only came to know about the
various proceedings under the Act of 1976
when he was sought to be dispossessed in
the month of April 2003. It has been stated
that, thereafter, unfortunately he died on
9.6.2003.

8. Learned counsel for the petitioner
submits that thereafter the petitioner who
had stepped into the shoes of Bheekhu
because of an unregistered Will dated
27.5.2003 started contesting the matter and
when the dispossession was being effected,
he filed the instant writ petition. Learned
counsel submitted that the petitioner was
thereafter made aware of the order dated
28.5.1985, certified copy of which was
obtained on 6.2.2004. This document was
an order under Section 10(5) of the Act of
1976 and by this order under Section 10(5)
of the Act of 1976, learned counsel for the
petitioner
submits
the
predecessor-ininterest of the petitioner was sought to be
408 INDIAN LAW REPORTS ALLAHABAD SERIES
dispossessed from the plots in question, the
area of which was 30512.60 square meters.

9. Learned counsel for the petitioner
has submitted that the order under Section
10(5) of the Act of 1976 was not preceded
by any notice under Section 10(5) of the
Act of 1976. He further submitted that, in
fact, the possession from the petitioner or
his predecessor-in-interest was never taken
and that all transfer of possession was only
paper transaction.

10. Upon being confronted by a
document which has been filed in the
counter affidavit as annexure no. CA-1
which as per the State was an order by
which the possession was taken under
Section 10(6) of the Act of 1976, learned
counsel for the petitioner submitted that
this document again was only a paper
transaction. He submits that under Section
10(6) of the Act of 1976 if possession was
to be taken then it ought to have been
preceded by a notice and also the
possession ought to have been given by the
land owner/tenure holder to the Collector.
He
submits
that
by
this
document
possession was given by the District
Magistrate, Kanpur Nagar, to the supervisor
Kanoongo on 22.1.1987. Learned counsel
also submitted that there was no signature
of any independent witness on this
document who might have evidenced the
transfer of possession.

11. Learned counsel for the petitioner
relied upon paragraphs no. 36 and 37 of the
judgement reported in 2013 (4) SCC 280
(State of U.P. vs. Hari Ram) and
submitted that if a peaceful transfer of
possession did not take place under Section
10(5) of the Act of 1976 then the State
could have taken a forcible possession. He
submitted that as per paragraph no. 37 of
the
aforementioned
judgement,
no
dispossession of the tenure holder could be
done under Section 10(6) of the Act of
1976 without any notice. Learned counsel
since has relied heavily upon paragraphs
no.36 & 37 of the judgement they are being
reproduced here as under:-

"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. 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 to only in a situation which
falls under Sub-section (6) 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), than
"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
3 All. Jor Singh @ Chhote Lal Vs. State of U.P. & Ors.
409
failure to implement the requirement. Effect
of non-issue of notice under Sub-section (5)
or Sub-section (6) of Section 10 is that it
might result in the land holder being
dispossessed without notice, therefore, the
word "may" has to be read as "shall"."

12. Learned counsel for the petitioner
further submitted that as per the judgement
of this Court report in 2018 (4) ADJ 749
(Harinam Singh and others vs. State of
U.P.), the memo of possession was
absolutely a sham documents as it did not
bear the signature of the tenure holder.
Further learned counsel for the petitioner
submits that as has been stated in the
judgement reported in 2018 (4) ADJ 749,
the transfer of the land in question from the
District Magistrate to the Supervisor
Kanoongo was absolutely inconceivable.
Learned counsel submitted that there was
no provision under any law that the District
Magistrate himself would transfer the land
to
another
State
Authority
i.e.
the
Supervisor Kanoongo. He submits that if at
all there was a transfer then the District
Magistrate himself or someone on his
behalf ought to have taken the possession.
Since the learned counsel heavily relied
upon paragraphs no. 19, 20 and 21 of the
judgement reported in 2018 (4) ADJ 749,
they are being reproduced here as under:-

"19. Applying the above law to
the facts of the present case, in the first
instance, we find that there has been no
notice as contemplated under Section 10(6)
of the Act, 1976 to the father of the
petitioners who was recorded tenure holder.
After notice under Section 10(5) since
tenure holder did not surrender possession,
it was mandatory for the respondents to
have issued notice under Section 10(6)
authorizing taking forceful possession. In
the second instance we find that memo of
possession which has been heavily relied by
the respondents and which has been
presented in the
counter-affidavit as
document evidencing delivery of possession
under Section 10(6) and has been strongly
defended by learned Additional Advocate
General, we find that this document does
not bear signature of tenure holder and
apart from this, the document also
acknowledges such statement which is
inconceivable in the case of possession of
memo of forceful dispossession of tenure
holders. The document bears the recital
that District Magistrate is delivering
possession under orders of Prescribed
Authority to Supervisor Kanoongo. We fail
to understand as to how District Magistrate
would deliver possession to the Supervisor
Kanoongo whereas in law it is District
Magistrate on whose behalf possession has
to be taken. The possession memo certifies
only that possession of land is taken in
presence of so and so witnesses. From the
authorities cited herein above, we are sure
that in matters of forceful dispossession the
witnesses who have signed should be from
public. If a Revenue Officer signs as a
witness and other Revenue Officer delivers
land to another Revenue Officer, such
document would be a sham. It is indeed a
sorry
state
of
affairs
that
Revenue
Authorities have not only defended this
document but referred it in their pleadings
that delivery of possession has been
effectively taken on the basis of this
document. The contention raised in the writ
petition was that the signatures of the
person delivering the possession in the
alleged possession memo is not of Ram
Singh father of the petitioners. The District
Magistrate in his letter dated 9.7.2017 has
acknowledged this fact that the person who
delivered the possession is Nayab Tehsildar
namely Ram Asre Verma. Thus, contention
raised in the writ petition stands admitted
410 INDIAN LAW REPORTS ALLAHABAD SERIES
that it was not Ram Singh, the tenure
holder, who had delivered the possession.
Under the circumstances, we are bound to
hold that no forceful dispossession as
contemplated under Section 10(6) of the
Act, 1976 had taken of petitioners' father
and he continued in possession and after
his death the petitioners came into
possession and have continued to be in
actual physical possession of land in
question and are entitled to the benefit of
Repeal Act.

20. Thus, in view of the above, in
respect of land in question, ceiling
proceedings have stood abated under the
Repeal Act, 1999 and respondents are
restrained
from
interfering
with
the
possession of petitioners of the land in
question in any manner whatsoever and
Revenue Authorities are directed to carry
out necessary correction in the land
records accordingly.

21. In this case, we find very
peculiar
circumstance
existing
where
Revenue
Authorities
prepared
a
manipulated document showing delivery of
possession and then thereafter, contested
the matter on the basis of said document
knowing fully that the document does not
constitute a valid document of Memo of
possession and that there has never been a
notice under Section 10(6) of the Act, 1976.
The petitioners have not only been
unnecessarily harassed and forced for the
present litigation but the respondents have
in a most mischievous manner contested
the issue on a fraudulent document. We
would be failing in our duty, if we let State
respondents' conduct go unnoticed. State
authorities are expected to present correct
facts and with utmost sense of sincerity, but
we find it most lacking in present case. To
present a document purported to be one
prepared under law may be incorrect for
many defects but to present a document as
one lawfully executed knowing it to be
illegal is something impermissible act and
conduct during judicial proceedings. We
are shocked that instead of giving up its
stand in given facts and circumstances of
the case, the State respondents not only
defended the document through pleadings
but also advanced arguments in defense
thereof. We are of considered opinion that
this litigation has been forced by State
authorities
as
they
did
not
allow
petitioners' claim illegally treating the
ceiling proceedings as not abated and
hence petitioner is entitled for exemplary
cost. The petitioners are entitled to cost
which we quantify as Rs. 2 lakhs. The cost
shall be paid at the first instance by the
State to the petitioners. However, it will be
open for the State to recover the said
amount from the persons who have been
responsible for such act of carelessness and
negligence and deliberate act of playing
fraud and forging a document meant to be
official one."

13. Further learned counsel for the
petitioner
submitted
that
there
was
absolutely
a
non-compliance
of
the
direction which was issued in the year 1983
which was called the Uttar Pradesh Urban
Land
Ceiling
(Taking
of
Possession
payment of amount and Allied Matters)
Directions, 1983.

14. Since the U.L.C. Form-I, II and III
were produced in the Court by the learned
Standing Counsel, the Court perused them
and found that definitely the clauses where it
had to be mentioned that the possession had
been taken were not filled in accordance with
law and on this fact the learned counsel for
the petitioner heavily laid stress upon.

15. Further learned counsel for the
petitioner submitted that in paragraph no.
3 All. Jor Singh @ Chhote Lal Vs. State of U.P. & Ors.
411
11 of the writ petition, the petitioner had
stated the following:

"11. That, the petitioner is still in
physical possession of the disputed land
and doing agriculture work."

16. He submitted that this paragraph
had been replied to in paragraph no. 16 of
the counter affidavit. Since learned counsel
for the petitioner relied upon paragraph no.
16 of the counter, the same is being
reproduced here as Under:

"16.
That
the
contents
of
paragraph no. 11 of the writ petition stands
denied. The alleged possession of the
petitioner is illegal and on the basis of that
possession the petitioner is not entitled for
any relief under the Repeal Act."

17. Learned counsel for the petitioner
further submitted that in paragraph no. 6 of
the Supplementary Affidavit which the
petitioner had filed on 7.2.2017 it was
stated that the petitioner was in possession
over the land in question. The paragraph
no. 6 of the supplementary affidavit is
being reproduced here as under:

"6. That the actual possession of
petitioner over the land in dispute is
apparent from the Khasra 1420 Faseli.
Copy of which obtained by the petitioner on
26.11.2016. The extract of Khasra 1420
faseli is being filed herewith and marked as
Annexure No. S.A.-3 to this supplementary
affidavit. In the Khasra cultivation of crop
is already recorded are shows the actual
possession of the petitioner predecessor
over the land in dispute."

18. In paragraph no. 9 of the
supplementary counter affidavit, the reply
was that the possession though was there it
was illegal. Since learned counsel for the
petitioner read out paragraph 9 of the
counter affidavit the same is being
reproduced here as under:

"9.
That
the
contents
of
paragraph no. 6 of the supplementary
affidavit, as stated, are not admitted hence
denied. The correct facts are that in the
khasra for the year 1420 fasli, the
agriculture as well as urban ceiling both is
recorded. From the aforesaid it is evident
that the agriculture on the land in question
is illegal and amounts to encroachment and
any possession of the petitioner are illegal.
The aforesaid facts also gets strength from
the decision of this Hon'ble Court in Writ
Petition No. 28180 of 2007 (Suresh Kumar
vs. State of U.P. and others) and Writ
Petition No. 37193 of 2017 (Suresh Kumar
vs. State of U.P. and others) in which the
Hon'ble Court has been pleased to hold
that such kind of agricultural use would be
treated
and
deemed
as
illegal
and
unauthorized."

19. Learned counsel for the petitioner
further submitted that the petitioner had the
locus standi to file the writ petition as he
had stated in the writ petition itself that he
had inherited the property in question
because of the will dated 27.5.2003. This
fact was mentioned in paragraph no. 9of
the writ petition. Paragraph no. 9 of the
writ petition which states this fact is being
reproduced here as under:-

"9.
That,
the
Bheekhu
has
executed a un-resgistered will in favour of
the
petitoiner
on
27.5.2003.
The
true/photostat copy of the un-registered will
dated 27.5.2003 executed by the Bheekhu
in favour of the petitioner, is being filed
412 INDIAN LAW REPORTS ALLAHABAD SERIES
here with and marked as Annexure no.6 to
this writ petition."

20. In the counter affidavit of the
State, learned counsel for the petitioner
submitted that the State had only vaguely
denied the contents of paragraphs no. 8 & 9
in paragraph no. 14 of the counter affidavit.
The paragraph no. 14 of the counter
affidavit is being reproduced here as
under:-

"14.
That
the
contents
of
paragraph no. 8 and 9 of the writ petition
are within the specific knowledge of the
petitioner as such he is to put strict proof in
respect thereto."

21. The State was represented by the
Additional Advocate General Sri M.C.
Chaturvedi, Senior Counsel, who was
assisted by Sri Mohan Srivastava and Ms.
Shubhra Singh learned Standing Counsel.
Sri M.C. Chaturvedi, Senior Counsel,
submitted that firstly the petitioner had no
locus standi as he was only a legatee of the
original tenure holder Sri Bheekhu who had
died on 9.6.2003. He had submitted that if
at all any objection had to be made to the
possession being taken by the State then it
was Bheekhu who should have come
forward. Secondly, the learned Additional
Advocate General submitted that the
possession of the plots in question was
taken way back on 22.1.1987 and,
therefore, the petitioner had approached the
High Court very belatedly .

22. The record of the case was
produced
by
the
learned
Additional
Advocate General in sealed cover and he
showed the original documents by which
the possession was taken over. This
document was also filed as annexure no.
CA-1 to the counter affidavit which was
filed on 19.3.2005. Learned Additional
Advocate General, therefore, submitted that
the petitioner could not argue that he was in
possession.

23. Learned Additional Advocate
General thereafter further submitted that as
per the statutory mandate there was no
requirement to issue a notice after an order
was passed under Section 10(5) of the Act
of 1976. Learned Additional Advocate
General, therefore, submitted that there was
no merit in the case and the writ petition be
accordingly dismissed.

24. Having heard Sri M.D. Singh
Shekhar, Senior Advocate, assisted by Sri
Vaibhav Goswami learned counsel for the
petitioner and Sri M.C. Chaturvedi, learned
Additional Advocate General, assisted by
Ms. Shubhra Singh for the State and Sri
Abhinava
Krishna
Srivastava
learned
counsel for the Kanpur Development
Authority, this Court is of the view that the
writ petition deserves to be allowed.

25. The petitioner is a legatee of the
original tenure holder. He had inherited the
property by means of a Will. The Will had
not been questioned in any court of law.
Therefore, the objection of the learned
Additional Advocate General that the
petitioner had no locus standi has no legs to
stand. Further from the record, we find that
the petitioner had throughout been in
possession over the plots in question. Even
in the counter affidavit which was filed on
19.3.2005 in paragraph 16 the State had
admitted the possession of the petitioner.
So also was the case in paragraph no. 9 of
the Supplementary Affidavit which had
been filed by the State on 16.5.2018. Under
the Act of 1999, the only determining
factor was whether the State Government
had taken actual physical possession of the
3 All. Jor Singh @ Chhote Lal Vs. State of U.P. & Ors.
413
excess land before 18.3.1999. The question
whether the land holders had accepted the
orders passed under Section 8(4) of the Act
of 1976 was irrelevant. What had to be only
looked into was as to whether the petitioner
was in possession. In the instant case, we
find that the document dated 22.1.1987
which has been filed as annexure-I to the
Counter Affidavit, and the original of it was
also seen by us when the record was
produced by the Additional Advocate
General, was a sham document. No
possession definitely was taken over by the
State and there was no de facto transfer of
possession. Even though under Section
10(6) of the Act of 1976, we find that there
is no requirement of a notice before action
is taken under Section 10(6) of the Act of
1976, but as per the Supreme Court
decision in 2013 (4) SCC 280 (paragraph
37) a notice before action is taken under
Section 10(6) of the Act of 1976 is
mandatory.

26. Under such circumstances, we
find that when there was no notice under
Section 10 (6) of the Act of 1976, transfer
of possession also could not have taken
place. The document annexure CA-I was
also a document which evidenced a sham
transfer. The tenure holder had not
handed over possession. Instead the
District Magistrate had handed over the
possession to the Supervisor Kanoongo.
This could not be done. Also there was no
independent
witness
to witness
the
transfer. Also, we find that the ULC
Forms I, II and III have not been filled in
accordance with law. Everything appears
to
have
been
done
in
the
most
inappropriate manner. Also since the
document dated 22.1.987 has been held to
be a sham document, definitely no
transfer had taken place. What is more
even in the counter affidavit there is an
admission that the petitioner was in
possession, though illegal.

27. Under such circumstances, the
writ petition is allowed. The petitioner
may not be dispossessed from the land in
question which had been declared as
excess land. Also in the revenue entries if
the petitioner's name had been deleted the
same may be restored vis-a-vis Gata No.
61 areas 204.8 square meter, Gata No.
219 areas 8106.10 square meters, Gata
No. 220 areas 1638.80 square meters,
Gata No.62 areas 1229.10 square meters,
Gata No. 63 areas 4199.10 square meters,
Gata No. 64 areas 13127.37 square
meters and Gata No. 61 areas 1024.25
square meters village Teekapurva, Majra
Bingawan, Pargana and District Kanpur
Nagar.

28. We are conscious of the fact that
during the pendency of the writ petition
there was no interim order operating.
Under such circumstances, not only
should the petitioner's name be entered in
the revenue record but also the State
Authorities
should
ensure
that
the
petitioner should be given possession
over the land in question if he has been
forcibly
dispossessed
during
the
pendency of the writ petition. Also we
provide that if the dispossession has
resulted in certain irreversible changes
i.e. to say that the petitioner cannot be
given possession then the petitioner may
be compensated treating the land to have
been acquired.

29. The original documents which
were handed over to the Court be put in
sealed cover and be returned to the
Registrar General for being handed over to
the relevant authorities.
----------
414 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 3 ILRA 414
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2023

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE VIVEK KUMAR SINGH, J.

Writ C No. 38977 of 2022

Mithai Lal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Yadavendra Kumar Yadav, Ms. Poonam
Yadav, Sri Raj Karan Yadav

Counsel for the Respondents:
C.S.C., Sri Ravi Prakash Pandey

A. Constitution of India - Article 226 -
Writ - Maintainability - Laches - Land
was
declared
as
surplus
land
on
03.06.1981 u/s 8(3) of the Urban Land
(Ceiling and Regulation) Act, 1976 -
Publication was too made - No remedy of
statutory appeal u/s 33 of Ceiling Act was
availed - Application filed u/s 45 of the
Ceiling Act was too rejected in 1998 -
Effect - Petitioners have raised the issue
of possession and notice u/s 10 (6) of the
Ceiling Act after lapse of more than 40
years and there is no explanation for the
delay - Effect - The equitable doctrine,
namely, "delay defects equity" has its
fullest application in the matter of grant of
relief under Article 226 of the Constitution
- Shah Hyder Beig's case relied upon -
Held, writ petition is highly time barred
and no reason for the inordinate delay has
been given in the writ petition. (Para 10,
12 and 19)

Writ petition dismissed . (E-1)

List of Cases cited:

1. Lalla & ors. Vs St. of UP & ors.; 2014 AIR
(107) 484

2. St. Vs Hari Ram; JT 2013 (4) SC 275

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

4. W.A. No.91/2006; Lalji Choubey Vs The St.
of M.P. & anr.

5. Writ-C No.41628 of 2011; Smt. KaLawati
Devi Vs St. of U.P. & ors. decided on
18.1.2023

6. Writ -C No.69115 of 2009; Lal Singh & Ors.
Vs Competent Authority Urban Land Ceiling and
Regulation & Ors. decided on 23.1.2023

7. Dehri Rohtas Light Railway Vs District Board
Bhojpur & ors.; (1992) 2 SCC 598

8. Shivgonda Anna Patil Vs St. of Mah.; (1999) 3
SCC 5

9. Municipal Council, Ahmednagar Vs Shah
Hyder Beig; (2000) 2 SCC 48

10. U.P. Jal Nigam & anr. Vs Jaswant Singh &
anr.; (2006) 11 SCC 464

11. Tukaram Kana Joshi & ors. Vs MIDC & ors.;
(2013) 1 SCC 353

12. St. of Assam Vs Bhaskar Jyoti Sharma &
ors.; (2015) 5 SCC 321

13. Shiv Ram Singh Vs St. of U.P. & ors.; 2015
(7) ADJ 630

14. Kapilaben Ambalal Patel & ors. Vs St. of
Guj.; 2021 (12) SCC 95

15. Writ C No.41628 of 2011; Smt. KaLawati
Devi Vs St. of UP & ors. decided on
18.01.2023

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.
&
Hon'ble Vivek Kumar Singh, J.)