# Mukkaram Ali Khan v. State of U.P. and

- **Citation:** (2010) 3 ILRA 1322
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-12-22
- **Case number:** Civil Misc. Writ Petition No. 2110 of 2005
- **Bench:** Devendra Pratap Singh, Mrs. Jayashree Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukkaram-ali-khan-v-state-of-u-p-and-41785
- **Pages:** 3

## Headnote

Act
1999-Section
4
and
5abatement
of
proceedings-without
Notice opportunity-in proceeding under
Section 10 (1) declared surplus land-by
order 22.02.1985-possession not taken
within prescribed period-delay in filling
appeal condemned-appeal allowed on
merit
examining
this
issued-heldjustified warrant no interference-petition
dismissed.

Held: Para 7

A perusal of the alleged possession
memo
dated
26.12.1996,
which
is
Annexure-2 to the writ petition, shows
that it is only a notice to the land holder
to handover possession of the vacant
land to the Collector with a note to the
Collector to take possession of the said
land. This is, in fact, not a possession
memo but only a notice under section 10
(5) of the Act and there is no material on
record
to
show
that
in
pursuance
thereof, either the land holder had given
vacant possession to the Collector or the
Collector had taken over possession of
the vacant land. In fact, the Governor
exercising powers under section 35 of
the Act, has framed Uttar Pradesh Urban
Land Ceiling (Taking of Possession,
Payment of Amount and Allied Matters)
Directions, 1983 providing procedure for
taking over possession of vacant land
and keeping that in view, this Court vide
order dated 2.2.2010 had given an
opportunity to the petitioner to produce
the Form ULC I, II and II to show that
the possession was taken over by the
petitioner. Even those records were not
produced
before
this
Court.
It
is
apparent that proceedings under section
10 (6) by which the authorities are
entitled to take forcible possession of the
vacant
land
were
never
initiated,
therefore, the appellate court was fully
justified in holding that the possession of
the vacant land was never taken over by
the State. This Court in several cases
including in the case of State of U.P. Vs.
Hari Ram and another Vs. [2005 (60)
ALR] 535 and also in the case of
Mukkaram Ali Khan Vs. State of U.P. and
others [AIR 2007 SC (Suppl) 985] has
held
that
where
actual
physical
possession has not been taken over, all
proceedings under the Act would abate
in view of section 3 and 4 of the Repeal
Act.
Case law discussed:
[2005 (60) ALR], [AIR 2007 SC (Suppl) 985]

## Text

1322 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2010

BEFORE
THE HON'BLE DEVENDRA PRATAP SINGH, J.
THE HON'BLE MRS. JAYASHREE TIWARI, J.

Civil Misc. Writ Petition No. 2110 of 2005

State Of U.P. Thru' Secy. Avas and
another

 ...Petitioner
Versus
A.D.J. Allahabad and another ...Respondents

Counsel for the Petitioner:
Sri S.P. Kesharwani (S.C.)

Counsel for the Respondents:
Sri Kailash Chand Srivastava

U.P. Urban Land (Ceiling and Regulation)
Repeal
Act
1999-Section
4
and
5abatement
of
proceedings-without
Notice opportunity-in proceeding under
Section 10 (1) declared surplus land-by
order 22.02.1985-possession not taken
within prescribed period-delay in filling
appeal condemned-appeal allowed on
merit
examining
this
issued-heldjustified warrant no interference-petition
dismissed.

Held: Para 7

A perusal of the alleged possession
memo
dated
26.12.1996,
which
is
Annexure-2 to the writ petition, shows
that it is only a notice to the land holder
to handover possession of the vacant
land to the Collector with a note to the
Collector to take possession of the said
land. This is, in fact, not a possession
memo but only a notice under section 10
(5) of the Act and there is no material on
record
to
show
that
in
pursuance
thereof, either the land holder had given
vacant possession to the Collector or the
Collector had taken over possession of
the vacant land. In fact, the Governor
exercising powers under section 35 of
the Act, has framed Uttar Pradesh Urban
Land Ceiling (Taking of Possession,
Payment of Amount and Allied Matters)
Directions, 1983 providing procedure for
taking over possession of vacant land
and keeping that in view, this Court vide
order dated 2.2.2010 had given an
opportunity to the petitioner to produce
the Form ULC I, II and II to show that
the possession was taken over by the
petitioner. Even those records were not
produced
before
this
Court.
It
is
apparent that proceedings under section
10 (6) by which the authorities are
entitled to take forcible possession of the
vacant
land
were
never
initiated,
therefore, the appellate court was fully
justified in holding that the possession of
the vacant land was never taken over by
the State. This Court in several cases
including in the case of State of U.P. Vs.
Hari Ram and another Vs. [2005 (60)
ALR] 535 and also in the case of
Mukkaram Ali Khan Vs. State of U.P. and
others [AIR 2007 SC (Suppl) 985] has
held
that
where
actual
physical
possession has not been taken over, all
proceedings under the Act would abate
in view of section 3 and 4 of the Repeal
Act.
Case law discussed:
[2005 (60) ALR], [AIR 2007 SC (Suppl) 985]

(Delivered by Hon'ble. Mrs. Jayashree Tiwari, J.)

1. Heard learned learned counsel for
the parties.

2. This petition arising out of
proceedings under the Urban Land
Ceiling Act, 1976 (here-in-after referred
to as the Act) has been filed challenging
the order dated 20.12.2000 by which
delay in filing the appeal has been
condoned and the order dated 22.10.2002
by which the appeal itself has been
allowed.

3. It appears that upon enforcement
of the Act, notice under section 8 of the
3 All] State of U.P. and another V. A.D.J. Allahabad and another
1323
Act was issued to the respondent no. 2
proposing to declare 5955.37 sq. meters
of land as surplus in the Urban
Angloration Area of Allahabad in Peepal
Gaon. It appears that an exparte order
dated 22.2.1985 was passed holding
5955.37 sq. meters of land as surplus.
Thereafter, proceedings under section 10
(1) and 10 (3) of the Act were also
initiated and after vesting of the land, a
notice under section 10 (5) of the Act was
issued on 26.12.1996 calling upon the
respondent no. 1 to hand over possession
of the surplus land and the Collector,
Allahabd
was
also
asked
to
take
possession of the said land in accordance
to law. However, the Act was repealed
vide Urban Land (Ceiling and Regulation)
Repeal Act, 1999 with effect from
18.3.1999 and it was provided that where
possession of the vacant land has not been
taken over by the Government, all
proceedings will abate. It appears that the
respondent no. 2 preferred an appeal on
20.12.2000 against the order dated
22.2.1985 along with a delay condonation
application with the allegation that he had
no notice whatsoever of the proceedings
and the order declaring surplus was
factually incorrect and therefore, sought
quashing of the said order. The delay
condonation application was allowed
when the counsel for the petitioner lodged
no objection vide order dated 20.12.2000
and thereafter the appeal itself has been
allowed on the ground that the possession
of the vacant land was not taken over by
the State and therefore, in view of the
provisions of the Repealing Act 1999,
entire proceedings abate.

4. Learned counsel for the petitioner
has firstly urged that the appellate court
had
illegally
allowed
the
delay
condonation application without any
opportunity to the petitioner to file their
objections.

5. A perusal of the order shows that
the District Government Counsel (Civil)
appearing on behalf of the petitioner before
the appellate court had himself contended
that there was no objection to the delay
condonation and therefore, the appellate
court was fully justified in condoning the
delay. Further, from the pleading of the writ
petition, there is no material to show that the
admission recorded by the court below was
not correct. Even otherwise, a perusal of the
order shows that the respondent no., 2 was
never personally served the notice issued by
the competent authority inviting objections
to the proposal sent for declaring surplus
land. Further, neither before the lower
appellate court nor before this Court, the
petitioners have disclosed the actual date of
service and the mode of service upon the
land holder and even the report of the
process server has not been annexed, and as
such, the court below was fully justified in
believing the affidavit filed by the land
holder. Thus, examining the issue from any
angle, it cannot be said that there was any
error in condoning the delay by the courts
below.

6. It is then urged that since the
possession of the disputed land had already
been taken over by the State on 26.12.1996,
thus, the proceedings under the Act could
not have been abated in view of Repeal Act.

7. A perusal of the alleged possession
memo
dated
26.12.1996,
which
is
Annexure-2 to the writ petition, shows that
it is only a notice to the land holder to
handover possession of the vacant land to
the Collector with a note to the Collector to
take possession of the said land. This is, in
fact, not a possession memo but only a
1324 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
notice under section 10 (5) of the Act and
there is no material on record to show that
in pursuance thereof, either the land holder
had given vacant possession to the Collector
or the Collector had taken over possession
of the vacant land. In fact, the Governor
exercising powers under section 35 of the
Act, has framed Uttar Pradesh Urban Land
Ceiling (Taking of Possession, Payment of
Amount and Allied Matters) Directions,
1983 providing procedure for taking over
possession of vacant land and keeping that
in view, this Court vide order dated
2.2.2010 had given an opportunity to the
petitioner to produce the Form ULC I, II
and II to show that the possession was taken
over by the petitioner. Even those records
were not produced before this Court. It is
apparent that proceedings under section 10
(6) by which the authorities are entitled to
take forcible possession of the vacant land
were never initiated, therefore, the appellate
court was fully justified in holding that the
possession of the vacant land was never
taken over by the State. This Court in
several cases including in the case of State
of U.P. Vs. Hari Ram and another Vs.
[2005 (60) ALR] 535 and also in the case of
Mukkaram Ali Khan Vs. State of U.P.
and others [AIR 2007 SC (Suppl) 985] has
held that where actual physical possession
has not been taken over, all proceedings
under the Act would abate in view of
section 3 and 4 of the Repeal Act.

8. Lastly, it is urged that in view of the
Repeal Act, the appeal itself was not
maintainable before the District Judge and
therefore entire proceedings are void ab
initio.

9. Be it so, quashing of the order of
the appellate court would result in revival of
another void order and therefore the Court
declines to set aside the appellate order.

10. No other point has been urged.

11. For the reasons above, this is not a
fit case for interference under Article to 226
of the Constitution of India. Rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2010

BEFORE
THE HON'BLE D.P. SINGH, J.
THE HON'BLE MRS. JAYASHREE TIWARI, J.

Civil Misc .Writ Petition No.2112 of 2005

State of U.P.and another ...Petitioners
Versus
Additional District Judge Allahabad and
another

 ...Respondents

Counsel for the Petitioners:
Sri S.P. Kesharwani (S.C.)

Counsel for the Respondents:
...............

Urban Land (Ceiling and Regulation
Repeal
Act,1991)-Section-10(5)-
possession of surplus land-land declared
surplus by ex-party order on 25.03.82
possession memo dated 27-4-96-mere
notice-No records placed to prove.that in
persuance of notice vacant possession
given to collector-despite of opportunity
Form ULC I,II and III not produced-in
absence
of
physical
possession
all
proceeding stood autometically abated.

Held: Para 7

A perusal of the alleged possession
memo
dated
27.4.1996,
which
is
Annexure-2 to the writ petition, shows
that it is only a notice to the land holder
to handover possession of the vacant
land to the Collector with a note to the
Collector to take possession of the said
land. This is, in fact, not a possession
memo but only a notice under section 10