# Kailash and another v. State of U.P. and others

- **Citation:** (2005) 3 ILRA 888
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-05
- **Case number:** Civil Misc. Writ Petition No. 22242 of 2002
- **Bench:** Amitava Lala, Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-and-another-v-state-of-u-p-and-others-40609
- **Pages:** 6

## Headnote

Act-1976-S-10 (5), 10 (6)- readwith
Urban Land (Ceiling and Regulation)
repeal
Act
199-Section
3
and
4Possession of surplus land-service of
Notice u/s 10 (5) to the co-sharer of
land-order-held-not
proper
serviceactual physical possession-special officer
categorically
speaks
that
no
actual
Physical possession taken by statedispite
of
opportunity
no
contrary
material brought before the Court-mere
mutation of name does not confer, any
title-land cannot be vested with statenor utilized held-land is free from any
requisition or acquision.

Held: Para 5,7,8 & 9

The law under Section 10 (5) of the Act
is crystal clear that notice in writing is to
be given to surrender or deliver the
possession and if any body refuses or
fails to comply, the authority may take
possession of the vacant land under
Section 10 (6) of the Act. From the
record we find that only a notice under
Sub-section 5 was received by one
"Bachchan
Lal".
According
to
the
petitioners he has no authority to receive
the notice. Even if a co-sharer can not
affect the right of the others in receiving
such notice. In any event notice under
the principal Act upon one "Bachchan
Lal" can not help the cause of the
respondents at present.

The obvious inference is that when
vesting
of
land
is
lifted
by
the
evaporation of law and the land under
vesting has not been utilised for any
purpose save and except putting sign
board, if any, to show that it was earlier
vested under the Principal Act, can not
be held by the State.

Hence, as per the interpretation of this
Court in this matter as well as in the
earlier occasion and having discussion on
3 All] Kailash and another V. State of U.P. and others
889
the similar point by another Division
Bench of this Court as also by the
Supreme
Court
either
expressly
or
impliedly, we do not find any other
reason other than to allow the writ
petition safely.

Therefore, we declare that the land in
question is free from any requisition or
acquisition under the Ceiling Act, as
aforesaid,
and
the
petitioners
are
entitled to have lawful possession of the
land in question.
Case law discussed:
2000 (6) SCC-325
2005 (III) SCC-832

Present:
(Hon'ble Mr. Justice Amitava Lala and
Hon'ble Mr. Justice Sanjay Misra)

Appearance:
For the Petitioners :
Sri R.N. Singh,
 Sr. Advocate.
Sri G.K. Singh &
Sri V.K. Singh.
For the Respondents:
Standing
Counsel.

---------
Amitava Lala, J.--- The impugned land
of the writ petitioners is, according to the
respondent authority, surplus in nature
and had been taken by the authority as per
Sections 10 (5) and 10 (6) of the Urban
Land (Ceiling & Regulation) Act, 1976.
Such Act was repealed by virtue of the
Urban Land (Ceiling and Regulation)
Repeal Act, 1999. State of Uttar Pradesh
adopted the repealing Act of the Central
Government. Therefore, the repealing Act
is applicable in the State with full force.

## Text

888 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
to the specific performance of the alleged
contract, the specific performance of
contract could not be enforced in favour
of the plaintiffs and the suit thus being not
maintainable,
ought
to
have
been
dismissed on this count itself, even
though the defendants failed to take any
objection. The appellate Court grossly
erred in law in decreeing the suit. The
question no.2 is decided in affirmative.

Under the above said facts and
circumstances of the case, the Judgment
and decree dated 24.8.1974 passed by the
District Judge, Bulandshahar in Civil
Appeal No.314 of 1971 Murari Lal and
others Vs. Smt. Janki and others is set
aside and the Judgment and decree dated
22.9.1971 of the trial Court passed in
Original Suit No.191 of 1969 between
Murari Lal and others Vs. Smt. Ganga
Devi and others is upheld. Appeal is
allowed. No order as to costs.

 Appeal Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2005

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No. 22242 of 2002

Kailash and another
 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.N. Singh
Sri Sharad Malviya
Sri R.K. Vidhyarthi
Sri G.K. Singh
Sri V.K. Singh

Counsel for the Respondents:
S.C.

U.P. Urban Land (Ceiling & Regulation)
Act-1976-S-10 (5), 10 (6)- readwith
Urban Land (Ceiling and Regulation)
repeal
Act
199-Section
3
and
4Possession of surplus land-service of
Notice u/s 10 (5) to the co-sharer of
land-order-held-not
proper
serviceactual physical possession-special officer
categorically
speaks
that
no
actual
Physical possession taken by statedispite
of
opportunity
no
contrary
material brought before the Court-mere
mutation of name does not confer, any
title-land cannot be vested with statenor utilized held-land is free from any
requisition or acquision.

Held: Para 5,7,8 & 9

The law under Section 10 (5) of the Act
is crystal clear that notice in writing is to
be given to surrender or deliver the
possession and if any body refuses or
fails to comply, the authority may take
possession of the vacant land under
Section 10 (6) of the Act. From the
record we find that only a notice under
Sub-section 5 was received by one
"Bachchan
Lal".
According
to
the
petitioners he has no authority to receive
the notice. Even if a co-sharer can not
affect the right of the others in receiving
such notice. In any event notice under
the principal Act upon one "Bachchan
Lal" can not help the cause of the
respondents at present.

The obvious inference is that when
vesting
of
land
is
lifted
by
the
evaporation of law and the land under
vesting has not been utilised for any
purpose save and except putting sign
board, if any, to show that it was earlier
vested under the Principal Act, can not
be held by the State.

Hence, as per the interpretation of this
Court in this matter as well as in the
earlier occasion and having discussion on
3 All] Kailash and another V. State of U.P. and others
889
the similar point by another Division
Bench of this Court as also by the
Supreme
Court
either
expressly
or
impliedly, we do not find any other
reason other than to allow the writ
petition safely.

Therefore, we declare that the land in
question is free from any requisition or
acquisition under the Ceiling Act, as
aforesaid,
and
the
petitioners
are
entitled to have lawful possession of the
land in question.
Case law discussed:
2000 (6) SCC-325
2005 (III) SCC-832

Present:
(Hon'ble Mr. Justice Amitava Lala and
Hon'ble Mr. Justice Sanjay Misra)

Appearance:
For the Petitioners :
Sri R.N. Singh,
 Sr. Advocate.
Sri G.K. Singh &
Sri V.K. Singh.
For the Respondents:
Standing
Counsel.

---------
Amitava Lala, J.--- The impugned land
of the writ petitioners is, according to the
respondent authority, surplus in nature
and had been taken by the authority as per
Sections 10 (5) and 10 (6) of the Urban
Land (Ceiling & Regulation) Act, 1976.
Such Act was repealed by virtue of the
Urban Land (Ceiling and Regulation)
Repeal Act, 1999. State of Uttar Pradesh
adopted the repealing Act of the Central
Government. Therefore, the repealing Act
is applicable in the State with full force.

2. The bone of contention of the
petitioners' argument is that the authority
had not taken the actual physical
possession of the land in question,
therefore, the possession can not be kept
by the State Authority after the repealing
Act being enforced in the State. The writ
petition was filed after the repealing Act
came into force.

3. Therefore, the moot point is
whether
the
words
actual
physical
possession are contemplated under the
prevailing law or not.

According to us, there is no such
bearing under the law leaving aside the
word possession. But we are constrained
due to evaporation of earlier law.
Therefore, the point has to be rationally
thought for the necessity. Doubtful words
are to be interpreted according to context
following the maxim noscitur a sociis. If
the word 'possession' in the existing law
does not only include actual physical
possession, what other type of possession
can include? Obviously it is symbolic
possession. But symbolic possession is
byproduct of principal Act which will be
effective at the time of vesting by
applying deeming provision now has been
repealed. Symbolic possession stands
with the support of law wherein physical
possession stands with the support of fact.
When
law
evaporates,
symbolic
possession automatically evaporates. But
physical possession remains to get it
tested. Therefore, if subsequent Act
supports existence of such possession, it
has to be construed as physical possession
but not symbolic possession. Court will
only test with whom such actual physical
possession lies. If the actual physical
possession of the State is such that it is
impossible to return back such possession,
obviously no order can be passed in such
case although law is little tilted in favour
of the land holders. Legislature has made
the provisions very clear under Sections 3
890 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
and 4 of the Repealing Act. The relevant
sections of the Repealing Act are quoted
hereunder:

"3. Savings.--(1) The repeal of the
principal Act shall not affect-
(a) the vesting of any vacant land
under
sub-section
(3)
of
Sec.
10,
possession of which has been taken over
by the State Government or any person
duly authorised by the State Government
in this behalf or by the competent
authority;

(b) the validity of any order granting
exemption under sub-section (1) of Sec.
20 or any action taken thereunder,
notwithstanding any judgment of any
Court to the contrary;

(c) any payment made to the State
Government as a condition for granting
exemption under sub-section (1) of Sec.
20.

(2) Where--

(a) any land is deemed to have vested
in the State Government under subsection (3) of Sec. 10 of the principal Act
but possession of which has not been
taken over by the State Government or
any person duly authorised by the State
Government in this behalf or by the
competent authority; and

(b) any amount has been paid by the
State Government with respect to such
land,

then such land shall not be restored
unless the amount paid, if any, has been
refunded to the State Government."

"4. Abatement of legal proceedings.-- All
proceedings relating to any order made
or purported to be made under the
principal Act pending immediately before
the commencement of this Act, before any
Court, Tribunal or any authority shall
abate:

Provided that this section shall not
apply to the proceedings relating to Secs.
11, 12, 13 and 14 of the principal Act
insofar as such proceedings are relatable
to the land, possession of which has been
taken over by the State Government or
any person duly authorised by the State
Government in this behalf or by the
competent authority."

4. Composite reading of the
aforesaid two sections gives indication of
mind. Under Section 10 (3) of the Urban
Land (Ceiling & Regulation) Act, 1976,
vesting shall be declared by notification
etc. Under Section 10 (5) notice will be
issued to surrender or deliver the
possession subject to such vesting. Under
Section 10 (6) if any person refuses or
fails to comply with an order made under
sub-section (5), the authority may take
possession. Therefore, when both vesting
and possession are available then alone
the original Act can be applicable. In
other words such possession can be made
only as an incident of vesting. Under the
repealing Act practical difficulty has been
considered by the legislature and that
practical difficulty is none other than the
actual physical possession it occurs
subject to vesting but even if law is lifted
but possession can not be given back
physically. The last part of sub-section (2)
under Section 3 of the repealing Act is in
respect of restoration of the land even
when the amount can be paid back to the
State Government. Payment of amount, if
3 All] Kailash and another V. State of U.P. and others
891
any, will come only when the possession
has been taken. The legislature has
extended the scope even to the extent
provided possession can be given back.
The proviso to Section 4 of the repealing
Act does not allow one to take advantage
of abatement of legal proceedings when
Section 11 onwards takes effect. Such
situation is available only when land has
been acquired and payment is existed. It
was held by the Supreme Court in 2000
(6) SCC 325 (Pt. Madan Swaroop
Shrotiya Public Charitable Trust Vs.
State of U.P. and others) that when
nothing on record to indicate that State
had taken possession over the surplus
land, the proceedings have to be abated
under Section 4 of the Repeal Act, 1999.
In totality enquiry and determination of
actual physical possession and payment or
refund money thereof are the necessary
requirement for consideration under the
Repeal Act. It has argued on the strength
of (2005) 3 SCC 632 (Kishan Lal Vs.
State of M.P. and others) that when both
vesting
and
possession
are
made
applicable then the original Act will be
made applicable but not the repealing Act,
otherwise
repealing
Act
will
be
applicable. Supreme Court held that there
are some other provisions in the said
section (Section 3 of the said Repeal Act)
which are relevant in deciding the
question as to whether the repeal shall
affect such vesting. In an unreported
judgement
when
State
wanted
a
clarification in this regard in Civil Misc.
Writ Petition No. 47369 of 2000 (State
of
U.P.
Through
the
Competent
Authority and another Vs. Hari Ram
and others) one of our Division Bench
held as follows:

".......an illegal act is not recognized
in law and has to be ignored unless
specifically required under statute to be
reckoned with. Secondly, possession of
surplus land, on notice given under
section 10 (5) of the Act is to be
surrendered by the landowner voluntarily
in pursuance to said notice. If the
landowner does not surrender possession
in pursuance to the aforesaid notice, 'the
Act' contemplates taking possession by
force and coercing the landowner under
section 10 (6) of the Act. If possession is
taken in an extraordinary manner (process
not recognized in law) i.e. without
resorting to the provisions contemplated
under section 10 (5) or Section 10 (6) of
the Act, then possession will be irrelevant
and of no consequence so far as the
applicability of the Repeal Act is
concerned. The Repeal Act shall have no
effect on the Principal Act if possession
of surplus land was not taken as
contemplated in the Principal Act. Repeal
Act, clearly talks possession being taken
under section 10 (5) or 10 (6) of the Act.
It is a statutory obligation on the
Competent Authority or State to take
possession as permitted in law. It is to be
appreciated that in case possession is
purported to be taken under section 10 (6)
of the Act, still Court is required to
examine
whether
'taking
of
such
possession' is valid or invalidated on any
of the considerations in law. If Court finds
that one or more grounds exist which
show that the process of possession,
though claimed under section 10 (5) or 10
(6) of the Act is unlawful or vitiated in
law, then such possession will have no
recognition in law and it will have to be
ignored and treated as of no legal
consequence. The possession envisaged
under section 3 of the Repeal Act is de
facto and not de jure only."
892 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
5. Even thereafter we wanted to
verify the truth of actual physical
possession and appointed a member of the
bar as Special Officer to visit the spot and
place a report before the Court under
sealed cover. Such report categorically
speaks that no actual physical possession
has been taken by the State. A fake
defence has been taken by the State that at
the time of inspection no one was present
on behalf of the State. But we find from
the earlier order of the Court that in
presence of all the parties when the order
was passed, it was made clear that no
further notice will be given but all will be
present at the time of making inspection
of the spot by the Special Officer. Under
the order dated 18th July, 2005 date and
time were fixed by this Court. After
opening the sealed cover and going
through the report we have directed to
circulate the report to give further
opportunity
to
the
parties
to
take
appropriate step including exception to
the report but State has not made any
application taking exception to the report.
They have relied upon their own record to
establish the cause under Section 10 (5) of
the Urban Land (Ceiling and Regulation)
Act, 1976. The law under Section 10 (5)
of the Act is crystal clear that notice in
writing is to be given to surrender or
deliver the possession and if any body
refuses or fails to comply, the authority
may take possession of the vacant land
under Section 10 (6) of the Act. From the
record we find that only a notice under
Sub- section 5 was received by one
"Bachchan
Lal".
According
to
the
petitioners he has no authority to receive
the notice. Even if a co-sharer can not
affect the right of the others in receiving
such notice. In any event notice under the
principal Act upon one "Bachchan Lal"
can not help the cause of the respondents
at present.

6. The respondents further wanted to
say that the land has been mutated in their
name, therefore, the same can not be said
to be land of the petitioners. We are all
aware that mutation can not give the title.
Therefore, mere mutation can not help the
State for saying that the land is their
actual physical possession. Even the
Division Bench of our High Court in the
earlier unreported judgement held as
follows:

"Mere 'mutation' of entry in favour of
State/other persons in revenue records, is
irrelevant/ inconsequential so far as the
applicability of section 3 of Repeal Act is
concerned."

Therefore, such point is also tested.

7. Learned Standing Counsel lastly
contended that it is impossible for the
State to keep actual physical possession of
all the lands in question, which were
previously vested by virtue of the surplus
land under the Principal Act. The answer
is hidden in such submission. The obvious
inference is that when vesting of land is
lifted by the evaporation of law and the
land under vesting has not been utilised
for any purpose save and except putting
sign board, if any, to show that it was
earlier vested under the Principal Act, can
not be held by the State.

8. Hence, as per the interpretation of
this Court in this matter as well as in the
earlier occasion and having discussion on
the similar point by another Division
Bench of this Court as also by the
Supreme
Court
either
expressly
or
impliedly, we do not find any other reason
3 All] Kalamuddin Khan V. State of U.P. and another
893
other than to allow the writ petition
safely.

9. Therefore, we declare that the
land in question is free from any
requisition or acquisition under the
Ceiling Act, as aforesaid, and the
petitioners are entitled to have lawful
possession of the land in question.

Thus,
the
writ
petition
stands
disposed of.

However, no order is passed as to
costs.
I agree.

(Justice Sanjay Misra)
Petition disposed of.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.08.2005

BEFORE
THE HON'BLE K.N. SINHA, J.

Criminal Misc. Application No. 6058 of 2005

Kalamuddin Khan

...Applicant
Versus
State of U.P. and another ...Opposite parties

Counsel for the Applicant:
Sri.P.C. Srivastava

Counsel for the Opposite parties:
A.G.A.

Code of Criminal Procedure-Section 482Quashing
of
Criminal
Proceedinginformant and the prosecution witnessnot supporting the prosecution case-if
put to the trail same evidence would be
repeated after wasting the precious time
of
court-held
proceeding
liable
to
quashed.

Held: Para 6

In the present case, the informant and
the eye witness have not supported the
prosecution
case
nor
named
the
applicant as assailant. If he is put to the
trial
the
same
evidence
would
be
repeated and after wasting the precious
time of the trial court, the result would
be the acquittal.
Case law discussed:
1965 (2) ACC-955

(Delivered by Hon'ble K.N. Sinha, J.)

1. Heard learned counsel for the
applicant and learned A.G.A.

The brief facts, giving rise of the
present application, are that a F.I.R. was
lodged
by
one
Sripat
Rai
on
30.10.2001.On 30.10.2001,at about 6.30
pm., his son Uma Kant Rai was coming
along with Lal Chandra an when they
reached near village Bahadurpur,two
person appeared and fired shot on Uma
Kant Rai.The assailants were not know
hence non was named in the F.I.R. during
investigation, statement of witnesses were
recorded and name of applicant came
therein. According of the investigating
officers, the involvement of the applicant
was under section 120B Indian Penal
Code and offence under section 302
Indian Penal Code was made out against
non applicant Dudh Nath Yadav and
Kanhai Yadav.The charges sheet was
submitted. The case against Dudh Nath
Yadav and Bhola Singh was committed to
the session court. The session trial no.613
of 202 proceeded in the court of Sessions
Judge, Azamgarh. Sri.Pat Rai, who is said
to be the informant of the case, did not
support the prosecution case and was
declared hostile. The eye witness Lal
Chandra also did not support the case and
was declared
hostile.
According to