# Raju v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 1161
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-17
- **Case number:** Writ-C No. 26861 of 2017
- **Bench:** Pradeep Kumar Singh Baghel, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-v-state-of-u-p-ors-44891
- **Pages:** 19

## Headnote

A. Civil Law - Urban Land (Ceiling and
Regulation) Act, 1976 - Section 10 (5)
and (6) - Urban Land (Ceiling and
Regulation) Repeal Act, 1999 - Section
3(2)(a) - Abatement of proceeding - No
possession memo - Physical possession
of the land was never taken from the
petitioner. He is still in cultivatory and
physical possession - State authorities
have not taken possession from the
petitioner in terms of sub-section (5) or
sub-section (6) of Section 10 of the Act,
1976 - Held the proceeding initiated
under the Act, 1976 stands abated in
terms of sub-section 2(a) of Section 3 of
the Repeal Act. (Para 22, 34 & 37)

Writ Petition allowed. (E-1)

List of cases cited: -

## Text

_Characters 0–39,981 of 61,249. This is a partial read: ask again with offset=39981 for what follows._

4 All. Raju Vs. State of U.P. & Ors.
1161

17. In the present case the petitioner
has averred that he has filed a writ
petition and a copy of the order of
Raghubar (supra) is also on the record
hence the judgement of Khatoon (supra)
is not applicable in the facts of the present
case as the petitioner had filed writ
petition which was tagged with the case
of Gajraj and others as also it was
disposed of in the same terms.

18. In any view of the matter, we are
of the opinion that the grievance of the
petitioner be considered at the first
instance by the authority concerned by
passing a reasoned order. Accordingly, the
writ petition is disposed of with a
direction upon the second respondent to
consider the cause of the petitioner and
pass appropriate order. The authority
concerned shall make an endeavour to
address the grievance of the petitioner
expeditiously, preferably within three
months from the date of communication
of this order.

19. Needless to say that we have not
expressed our opinion on the merits of the case,
the authority concerned shall pass the order
independently and in accordance with law.

20. No order as to costs.
----------
(2019)12 ILR A1161

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2019

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

Writ-C No. 26861 of 2017

Raju ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Raj Karan Yadav

Counsel for the Respondents:
C.S.C., Sri Ravi Prakash Pandey, Sri Vivek
Verma, Sri M.C. Chaturvedi

A. Civil Law - Urban Land (Ceiling and
Regulation) Act, 1976 - Section 10 (5)
and (6) - Urban Land (Ceiling and
Regulation) Repeal Act, 1999 - Section
3(2)(a) - Abatement of proceeding - No
possession memo - Physical possession
of the land was never taken from the
petitioner. He is still in cultivatory and
physical possession - State authorities
have not taken possession from the
petitioner in terms of sub-section (5) or
sub-section (6) of Section 10 of the Act,
1976 - Held the proceeding initiated
under the Act, 1976 stands abated in
terms of sub-section 2(a) of Section 3 of
the Repeal Act. (Para 22, 34 & 37)

Writ Petition allowed. (E-1)

List of cases cited: -

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

2. Gajanan Kamlya Vs Addl. Collector & Comp.
Auth.& Ors. JT 2014 (3) SC 211

3. St. of U.P & Anr. Vs Nek Singh 2010 Law
Suit (All) 3581

4. Ram Singh Vs St. of U.P. & Ors. 2013 (7)
ADJ 662 (DB)

5. St. of U.P. Thru Secy Avas Avam Shahri Niyojan
Vs Ruknuddin & Ors. Writ-C No. 54830 of 2011,
decided on 03.10.2018: Law Suit (All) 3470

6. Lalji Vs St. of U.P. & Anr. 2018(5) ADJ 566

List of cases cited: -

1. Yasin and others v. State of U.P. and others
2014(4) ADJ 305(DB)
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Ram Chandra Pandey v. State of U.P. and
others 2010 (82) ALR 136

3. State of Assam v. Bhaskar Jyoti Sharma and
Others 2015 (5) SCC 321

4. Shiv Ram Singh Vs. State of U.P. & Others
2015 (5) AWC 4918

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel,J.)

1. The petitioner has laid challenge
in
the
present
writ
petition
the
proceedings initiated under the provisions
of
the
Urban
Land
(Ceiling
and
Regulation) Act, 1976 (for short Act No.
33 of 1976)1 on the ground that the said
proceedings stood abated in terms of the
Urban Land (Ceiling and Regulation)
Repeal Act, 1999 (for short Act 15 of
1999)2 and for quashing of the order
dated 02.05.2017 passed by the District
Magistrate,Varanasi.

2. Brief factual matrix may be noted.
The petitioner claims that he is owner of
the araji nos. 31/1 area 11 decimal, 86/1
area 26 decimal, 86/4 area 20 decimal,
32/2 area 3⁄4 decimal. He claims to have
half share out of total araji. The said land
was within the municipal limit of the
Varanasi and the land was recorded as
agricultural land but being the land within
the municipal limit the provisions of the
Act, 1976 were made applicable. The
petitioner
submitted
ceiling
return/statement under sub-section (1) of
Section 6 of the Act No.33 of 1976 Act,
which
was
registered
as
case
no.915/7035/76-77 (State Vs. Lallan) and
case
no.916/7035/76-77
(State
v.
Bachau),
Village
Ranipur,
District
Varansari. It is stated that without serving
the notice under Section 8(3) of the
Act,1976 illegal order was passed on
27.10.1978 under Section 8(4) of the Act,
1976 and out of 3218.54 square meter
land 218.54 square meter land was
declared surplus. Thereafter a notice is
said to be issued under sub-section (5) of
Section 10 of the Act, 1976, it bears the
date 15.02.1982. The petitioner has
averred in paragraph 7 of the writ petition
which has been repeated in other
paragraphs also that the said notice dated
15.02.1982 was never served upon the
petitioner and as such the land holders
neither surrendered the land to the State
nor the respondents have ever taken actual
possession from the petitioner.

3. It is stated that the petitioner is
still in physical and cultivatory possession
of the land in question and since the order
under sub-section (4) of Section 8 of the
Act, 1976 was never served upon the land
holder, therefore, he could not file any
appeal under Section 33 of the Act, 1976.

4. The petitioner has further averred
that no proceeding under sub-section (5)
or sub-section (6) of Section 10 of the
Act,1976 has been initiated, therefore,
after
repeal
Act
came
into
force
respondents have no right to take
possession from the petitioner.

5. It is worthwhile to mention that in
the meantime the Act, 1976 was repealed
by
the
Urban
Land
(Ceiling
and
Regulation) Repeal Act, 1999 (Act 15 of
1999). The said Act was adopted by the
State of U.P. whereunder subject to the
certain conditions mentioned in the
provisions of the Act the pending
proceedings shall be lapsed. That one of
the relief sought in the writ petition is that
to declare that the proceedings initiated
under the Act, 1976 is abated in terms of
the Repeal Act.
4 All. Raju Vs. State of U.P. & Ors.
1163

6. The petitioner had earlier
approached this Court by way of Writ
Petition No.6757 of 2017, Raju v. State
of U.P. & 2 Others. The said writ
petition was disposed of on 13.02.2017
with a direction upon the respondent no.2
to consider the fact relating to the actual
physical possession of the plot in question
and such an enquiry be undertaken at first
instance by the District Magistrate. In
pursuance of the order of this Court dated
13.02.2017 the petitioner had submitted
detailed representation on 23.02.2017,
wherein he has asserted that he is still in
physical possession and no forceful
possession has been taken under subsection 6 of Section 10 of Act, 1976. It
has also been averred that the petitioner
never surrendered voluntarily his land
after the alleged notice under sub-section
(5) of Section 10 of the Act, 1976 was
issued to him. The District Magistrate has
rejected
the
representation
of
the
petitioner by a cryptic order only on the
ground that the petitioner's land has been
declared
surplus
vide
order
date
27.10.1978 under sub-section (4) of
Section 8 of the Act, 1976 and 218.54
square meter has been declared surplus.
Declaration under sub-section (1) and
sub-section (3) of Section 10 of Act, 1976
was made in official gazette and after that
the information in terms of sub-section (5)
of Section 10 of Act, 1976 was issued on
15.02.1982 and the compensation amount
Rs.1092.70
was
determined
on
21.08.1998 and the possession to the
Varanasi Development Authority has
been handed over before the Repeal Act
came into force and accordingly the
representation of the petitioner has been
rejected. The order dated 02.05.2017
passed by the District Magistrate is also
under challenge in the instant writ
proceedings.

7. A counter affidavit has been filed
by the State. The stand taken in the
counter affidavit is that Lallan and
Bachau, sons of Mitlu (father of the
petitioners) had filed detailed documents
under sub-section (1) Section 6 of Act,
1976 and a notice dated 21.10.1978 was
issued under sub-section (3) of Section 8
of the Act, 1976 against which no
objection
was
filed.
Thereafter
the
competent authority on 27.10.1978 has
passed an order under sub-section (4) of
Section 8 of the Act, 1976 and declared
218.54 square meter as surplus vacant
land. It is further averred that the
necessary publication in terms of subsection (1) and sub-section (3) of Section
10 of the Act, 1976 was issued and after
issuance of the Government Order dated
26.12.1978 and 22.03.1980 a notice under
sub-section (5) of Section 10 of the Act,
1976 was issued to the petitioner for
delivering the possession of the land and
that was done prior to the Repeal Act
came into force.

8. A short counter affidavit was filed
on behalf of the Varanasi Development
Authority wherein it is clearly mentioned
that the petitioner's land has not been
transferred to the Varanasi Development
Authority. The said counter affidavit was
sworn
by
the
Tehsildar,
Varanasi
Development Authority wherein it has
been averred that the Competent Officer
has not transferred any surplus land of
plot nos. 3/6, 18/1, 18/9 and 18/11 at
Mauja Lakhanpur, Pargana Dehat, Tehsil
Amanat,
District
Varanasi
to
the
Varansari Development Authority. It is
averred that neither the disputed land has
been
transferred
to
the
Varansari
Development Authority nor the same is in
its possession at present.

(emphasis supplied)
1164 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In the rejoinder affidavit the
petitioner has denied the allegation made
in the counter affidavit filed on behalf of
the State that the notice under sub-section
(5) of Section 10 of the Act, 1976 has
never been served upon the petitioner and
no proceeding under-section (6) of
Section 10 has been held. It is also stated
that the State in its counter affidavit has
not given the date of peaceful possession
or actual physical possession taken by the
State. It is also averred that the possession
of the land in dispute has not been taken
by the State nor the petitioner has
voluntarily handed over the possession of
his land which was declared surplus land
to the State.

10. We have heard Sri Raj Karan
Yadav, the learned counsel for the
petitioner, Sri M.C.Chaturvedi, learned
Senior Advocate assisted by Sri R.P.
Pandey, learned counsel for the Varanasi
Development Authority and the learned
Standing
Counsel
and
perused
the
materials on record.

11. The learned counsel for the
petitioner has submitted that the petitioner
has never handed over the possession of
the disputed land under sub-section (5) of
Section 10 of Act, 1976 to the State and
no forceful possession has been taken
from the petitioner under sub-section (6)
of Section 10 of the Act,1976.

12. It has been vehemently urged
that the petitioner is still in physical and
cultivatory possession of the land and he
has never handed over the possession to
the authority. He further submits that in
view of the fact that the petitioner is still
in possession of the land and no forceful
possession has not been taken over by the
State, the proceedings under under the
Act, 1976 stood abated in terms of subsection 2(a) of Section 3 of the Repeal
Act. Lastly, he has urged that the
Varanasi Development Authority in its
counter affidavit has clearly admitted that
the land in question has never been
transferred to it. Thus, a false statement
has been made by the State in its counter
affidavit that the possession was handed
over
to
the
Varanasi
Development
Authority. He further submitted that the
State in its counter affidavit has not
disclosed the date when the possession
was taken.

13. The learned counsel for the
petitioner has placed reliance on the
judgment of the Supreme Court in the
case of State of U.P. v. Hari Ram3, Lalji
v. State of U.P. and another4, Yasin
and others v. State of U.P. and others5,
and Ram Chandra Pandey v. State of
U.P. and others6,

14. Learned Standing Counsel
submitted that after the notification made
under sub-section (1) of Section 10 and
sub-section (3) of Section 10 of the Act,
1976 the surplus land declared by the
competent authority stood vested with the
State and in the revenue records also the
name of the State was recorded. He has
placed reliance on a judgment of the
Supreme Court in the case of State of
Assam v. Bhaskar Jyoti Sharma and
Others7, and Shiv Ram Singh Vs. State
of U.P. & Others8,.

15. We have summoned the original
record in the matter and the learned
Standing Counsel has stated that in this
batch of writ petitions there is no original
possession memo in the original record.
He also failed to point out in the original
record which indicates that after taking
4 All. Raju Vs. State of U.P. & Ors.
1165
possession from the petitioner it was
handed over to the Varanasi Development
Authority.

16. From the record it is also evident
that no proceedings under sub-section (6)
of Section 10 of the Act, 1976 has been
taken.

17.

Before
adverting
to
the
submissions raised by the learned counsel
for the parties it would be apposite to
refer relevant provisions of the Act, 1976.

18. Section 2(o) of the Act, 1976
defines "urban land" and Section 2(q)
defines "vacant land". Section 6 of the
Act, 1976 provides that owner of the land
shall submit a statement giving detail of
the vacant land. Section 8(1) enjoins that
the competent authority shall get a survey
of the land conducted and on the basis of
the said survey a draft statement under
sub-section (3) of Section 8 of the Act,
1976 was required to be served upon the
land owner calling for objection to the
said statement within thirty days and the
order is passed under sub-section (4) of
Section 8 of the Act, 1976 and later a
notification is issued under sub-section
(1) of Section 10 for publication in the
Gazette giving particulars of the vacant
land.
Thereafter
another
notice
is
published stating that the land shall be
deemed to have been vested on the
Government free from all encumbrances.
Thereafter a notice under sub-section (5)
of Section 10 of the Act, 1976 is issued
calling upon the land owner to hand over
possession of the land declared surplus. If
the land owner fails to handover the
possession voluntarily in response to the
aforementioned notice, sub-section (6) of
Section 10 of the Act, 1976 confers a
power upon the competent authority to
take forceful possession. For the sake of
convenience, Sections 2(o), 2(q) and subsections (5) and (6) of Section 10 of the
Act, 1976 are reproduced hereunder:

"2(o) "urban land" means,--

(i) any land situated within the
limits of an urban agglomeration and
referred to as such in the master plan; or

(ii) in a case where there is no
master plan, or where the master plan
does not refer to any land as urban land,
any land within the limits of an urban
agglomeration and situated in any area
included within the local limits of a
municipality (by whatever name called), a
notified area committee, a town area
committee, a city and town committee, a
small town committee, a cantonment
board or a panchayat, but does not
include any such land which is mainly
used for the purpose of agriculture.

 Explanation.--For the purpose
of this clause and clause (q),--

(A)
"agriculture"
includes
horticulture, but does not include--

(I) raising of grass,

(ii) dairy farming,

(iii) poultry farming,

(iv) breeding of live-stock, and

(v) such cultivation, or the
growing of such plant, as may be
prescribed;

(B) land shall not be deemed to
be used mainly for the purpose of
agriculture, if such land is not entered in
the revenue or land records before the
appointed day as for the purpose of
agriculture:

Provided that where on any
land which is entered in the revenue or
land records before the appointed day as
for the purpose of agriculture, there is a
building which is not in the nature of a
farm-house, then, so much of the extent of
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
such land as is occupied by the building
shall not be deemed to be used mainly for
the purpose of agriculture:

Provided further that if any
question arises whether any building is in
the nature of a farm-house, such question
shall be referred to the State Government
and the decision of the State Government
thereon shall be final;

(C) Notwithstanding anything
contained in clause

(B) of this Explanation, land
shall not be deemed to be mainly used for
the purpose of agriculture if the land has
been specified in the master plan for a
purpose other than agriculture;"

"2(q) "vacant land" means land,
not being land mainly used for the
purpose of agriculture, in an urban
agglomeration, but does not include--

(i) land on which construction
of a building is not permissible under the
building regulations in force in the area
in which such land is situated;

(ii) in an area where there are
building regulations, the land occupied by
any building which has been constructed
before, or is being constructed on, the
appointed day with the approval of the
appropriate authority and the land
appurtenant to such building; and

(iii) in an area where there are
no building regulations, the land occupied
by
any
building
which
has
been
constructed
before,
or
is
being
constructed on, the appointed day and the
land appurtenant to such building:

Provided that where any person
ordinarily keeps his cattle, other than for
the purpose of dairy farming or for the
purpose of breeding of live-stock, on any
land situated in a village within an urban
agglomeration (described as a village in
the revenue records), then, so much extent
of the land as has been ordinarily used for
the keeping of such cattle immediately
before the appointed day shall not be
deemed to be vacant land for the purposes
of this clause."

"10(5) Where any vacant land
is vested in the State Government under
sub-section (3), the competent authority
may, by notice in writing, order any
person who may be in possession of it to
surrender or deliver possession thereof to
the State Government or to any person
duly authorised by the State Government
in this behalf within thirty days of the
service of the notice."

"10(6) If any person refuses or
fails to comply with an order made under
sub-section (5), the competent authority
may take possession of the vacant land or
cause it to be given to the concerned State
Government or to any person duly
authorised by such State Government in
this behalf and may for that purpose use
such force as may be necessary.

Explanation.--In this section, in
sub-section (1) of section 11 and in
sections 14 and 23, "State Government",
in relation to--

(a) any vacant land owned by
the Central Government, means the
Central Government;

(b) any vacant land owned by
any State Government and situated in the
Union territory or within the local limits
of a cantonment declared as such under
section 3 of the Cantonments Act, 1924 (2
of 1924), means that State Government."

19. In the year 1999 the Parliament
enacted the Urban Land (Ceiling and
Regulation) Repeal Act, 1999 (for short
Act 15 of 1999). The said Act was
adopted by the State of U.P. also by a
notification dated 18.03.1999. It is
apposite to reproduce Sections 3 and 4 of
the Repeal Act.
4 All. Raju Vs. State of U.P. & Ors.
1167

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

(a) the vesting of any vacant
land under sub-section 10, possession of
which has been taken over by 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 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 Section 20.

(2) Where--

(a) any land is deemed to have
vested in the State Government under subsection (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.

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
other authority shall abate:

Provided that this section shall
not apply to the proceedings relating to
sections 11,12,13 and 14 of the principal
Act in so far 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."

20. It is significant to mention that
in exercise of the powers under Section
35 of the Act, 1976 the State Government
issued the Directions, 1983 known as The
Uttar
Pradesh
Urban
Land
Ceiling
(Taking of Possession, Payment of
Amount and Allied Matters) Directions,
1983 (Directions issued by the State
Government under Section 35 of the Act,
1976). The direction no.3 is relevant for
our purpose which is extracted below:

"3.
Procedure
for
taking
possession of vacant land in excess of
ceiling
limit.--(1)
The
competent
authority will maintain a register in Form
No.ULC -1 for each case regarding which
notification under sub-section (3) of
Section 10 of the Act is published in the
gazette."

4. (1) *

*

*

(2) An order in Form No. ULCII will be sent to each land holder as
prescribed under sub-section (5) of
Section 109 of the Act and the date of
issue and service of the order will be
entered in Column 8 of Form No. ULC-I.

(3) On possession of the excess
vacant land being taken in accordance
with the provisions of sub-section (5) or
sub-section (6) of Section 10 of the Act,
entries will be made in a register in Form
ULC-III and also in Column 9 of the
Form
No.
ULC-1.
The
competent
authority shall in token of verification of
the entries, put his signatures in Column
11 of Form No. ULC-1 and Column 10 of
Form No. ULC-III.

Form No. ULC-1
1168 INDIAN LAW REPORTS ALLAHABAD SERIES

Register
of
notice
under
Sections 10(3) and 10(5)
(
1
)
(
2
)
(3) (
4
)
(5) (6) (
7
)
(8) (
9
)
(10
)
(11)
S
l.
N
o.
S
l.
N
o.
o
f
re
gi
st
er
o
f
re
c
ei
pt

S
l.
N
o.
o
f
re
gi
st
er
o
f
ta
ki
n
g
p
o
ss
e
ss
-
Ca
se
Nu
mber
D
at
e
o
f
N
ot
if
ic
at
io
n
u
n
d
er
S
e
ct
io
n
1
0
(
3
)
La
nd
to
be
acq
uired
vill
age
Mo
hali
Da
te
of
ta
ki
ng
ov
er
po
ss
essi
on
R
e
m
a
r
k
s
Sig
nat
ure
of
co
mp
ete
-nt
aut
hor
ity

io
n

Form No. ULC-II
Notice order under Section 10(5)
[See clause (2) of Direction (3)]
In the court of competent authority

U.L.C. ...............

No..................... Date
..................

Sri/Smt............................... T/o
.........................

In exercise of the powers vested
under Section 10(5) of the Urban Land
(Ceiling and Regulation) Act, 1976 (Act
No.33 of 1976), you are hereby informed
that vide Notification No....... dated .....
under Section 10(1) published in Uttar
Pradesh Gazette dated ...... following land
has vested absolutely in the State free
from all encumbrances as a consequence
Notification
under
Section
10(3)
published in Uttar Pradesh Gazette dated
....... Notification No......... dated .... With
effect from .......... you are hereby ordered
to surrender or deliver the possession of
the land to the Collector of the District
Authorised
in
this
behalf
under
Notification No.324/II-27- U.C.77 dated
February 9, 1977, published in the
gazette, dated March 12, 1977, within
thirty days from the date of receipt of this
order otherwise action under sub-section
(6) of Section 10 of the Act will follow.

Description of vacant land

Loca
tion
Khasr
a No.
identif
icatio
n
Area
Remarks
1
2
3
4
4 All. Raju Vs. State of U.P. & Ors.
1169
Competent Authority
...............................
...............................

No. .......................

Dated.............................

Copy forwarded to the Collector
............ with the request that action for
immediate taking over of the possession of
the above detailed surplus land and its
proper maintenance may, kindly be taken
an intimation be given to the undersigned
along with the copy of certificate to verify.
Competent Authority
...............................

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

21.

In
addition,
the
State
Government has issued a Government
Order on 29.09.2015 pursuant to the
judgment of the Supreme Court in the
case of Hari Ram (supra) and to avoid
the unnecessary litigation the State
Government has issued detailed directions
in respect of the possession and abatement
of the proceedings. The said Government
Order reads as under:

"la[;k & 2228@vkB&6&15&124
;wlh@13

izs"kd]

iu/kkjh ;kno

lfpo]

mRrj izns'k 'kkluA

lsok esa]

ftykf/kdkjh]

xksj[kiqj] okjk.klh] bykgkckn]
y[kuÅ] dkuiqj

vkxjk]
esjB]
eqjknkckn]
vyhsx<] cjsyh] lgkjuiqjA

vkokl ,oa 'kgjh fu;kstu vuqHkkx&6

y[kuÅ% fnukad 29 flrEcj
2015

fo"k;& uxj Hkwfe 1⁄4vf/kdre lhek
,oa fofu;eu1⁄2 fujlu vf/kfu;e] 1999 rrdze
eas fuxZr 'kklukns'k rFkk ek0 mPpre U;k;ky;
ds fu.kZ; fnukad 11-03-2013 ds lEcU/k easaA
&&&&&&

egksn;]

mi;qDZr fo"k; ij eq>s ;g
dgus dk funsZ'k gqvk gS fd Hkkjr ljdkj ds
vf/kfu;e la[;k&15@1999 fnukad 18-03-1999
}kjk uxj Hkwfe 1⁄4vf/kdre lhek ,oa fofu;eu1⁄2
vf/kfu;e 1976 dks fujflr djrs gq, uxj Hkwfe
1⁄4vf/kdre
lhek
,oa
fofu;eu1⁄2
fujlu
vf/kfu;e 1999 izk[;kfir fd;k x;k ftlds
dze esa 'kklukns'k la[;k& 502@9& u0
Hkw0&99&21;w0lh0@99] fnukad 31-03-1999 }kjk
mDr fujlu vf/kfu;e dks mRrj izns'k jkT; esa
vaxhd`r fd;k x;kA fujlu vf/kfu;e 1999 dh
/kkjk&3 esa ;g izkfo/kku gS fd ewy vf/kfu;e dk
fujlu fuEufyf[kr dks izHkkfor ugha djsxk&

1⁄411⁄2 1⁄4d1⁄2 /kkjk&10 dh mi/kkjk& 1⁄431⁄2
ds v/khu ,slh fjDr Hkwfe dk fufgr gksuk]
ftldk dCtk jkT; ljdkj ;k jkT; ljdkj
}kjk bl fufeRr lE;d :i ls vf/kd'rd
fdlh O;fDr ;k l{ke izkf/kdkjh us ys fy;k gSA

1⁄4[k1⁄2 /kkjk& 20 dh mi/kkjk& 1⁄411⁄2 ds
v/khu NwV nsus laca/kh fdlh vkns'k ;k mlds
v/khu dh x;h fdlh dk;Zokgh dh fdlh
U;k;ky; ds fdlh fu.kZ; esa mlds foL) fdlh
ckr ds gksrs gq, Hkh fof/kekU;rk%

1⁄4x1⁄2 /kkjk& 20 dh mi/kkjk& 1⁄411⁄2 ds
v/khu iznku dh x;h NwV dh 'krZ ds :i es
jkT; ljdkj dks fd;k x;k dksbZ lank;%

1⁄421⁄2 tgka&

1⁄4d1⁄2 ewy vf/kfu;e dh /kkjk&10 dh
mi/kkjk 1⁄431⁄2 ds v/khu fdlh Hkwfe dks jkT; ljdkj esa
fufgr gksuk ekuh x;h gS fdUrq ftldk dCtk jkT;
ljdkj ;k jkT; ljdkj }kjk bl fufeRr lE;d
:i ls izkf/kd`r fdlh O;fDr ;k l{ke izkf/kdkjh }kjk
ugh fy;k x;k % vkSj

1⁄4x1⁄2 ,slh fdlh Hkwfe ds ckcr ftlds
fy, jkT; ljdkj }kjk fdlh jde dk lank;
dj fn;k x;k gS rc rd izR;kofrZr ugh dh
tk; vkSj tc rd fd jkT; ljdkj dks lank;
dh x;h jde dk ;fn dksbZ gks] izfrnk; ugh
dj fn;k tkrkA

mDr
ds
dze
esa
'kklukns'k
la[;k&777@9u0Hkw0&135 ;w0lh0@99 fnukad
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
09-02-2000]
'kklukns'k
la[;k&1623@
9&u0Hkw0&2000
fnukad
09-08-2000
,oa
'kklukns'k la[;k& 190@9&vk&6&2001 fnukad
24-01-2001 fuxZr fd;s x;s ftles eq[; :i ls
;g O;oLFkk dh xbZ fd ewy vf/kfu;e /kkjk &8
1⁄441⁄2 ds vUrxZr tks Hkwfe fjDr ?kksf"kr dh xbZ Fkh
vkSj /kkjk&10 1⁄431⁄2 ds vUrxZr jkT; esa fufgr gks
pqdh Fkh ,oa /kkjk&10 1⁄451⁄2 dh dk;Zokgh dk
vkns'k gks pqdk Fkk ijUrq bl Hkwfe ij jkT;
ljdkj dk dCtk izkIr ugh gks ldk Fkk] ,slh
Hkwfe ds lEcU/k es ewy Hkw/kkjd dks vnk dh xbZ
/kujkf'k Hkw/kkjd }kjk okil djus ij Hkwfe ewy
Hkw/kkjd dks izR;kofrZr dh tk ldrh gS fdUrq
vnk dh xbZ /kujkf'k Hkw& /kkjd }kjk okil u
djus dh n'kk esa Hkwfe ij dCtk fd;s tkus ds
lEcU/k es fof/k vuqlkj vfxze dk;Zokgh vey es
yk;h tk;A ;g Hkh O;oLFkk dh xbZ fd ftl
Hkwfe ds lEcU/k esa /kkjk&10 1⁄451⁄2 dh dk;Zokgh ds
mijkUr /kkjk&10 1⁄461⁄2 dh dk;Zokgh iwoZ gks pqdh
gS vkSj Hkwfe ij jkT; ljdkj }kjk dCtk fy;k
tk pqdk gS og ljIyl Hkwfe vfUre :i ls
jkT; ljdkj esa fufgr ekuh tk;sxhA

3- uxj Hkwfe lhekjksi.k& xksj[kiqj]
okjk.klh] bykgkckn] y[kuÅ] dkuiqj] vkxjk]
esjB] eqjknkckn] vyhsx<] cjsyh] lgkjuiqj esa
yfEcr vcZu lhfyax izdj.kksa dk leqfpr :i ls
fuLrkj.k
us
gksus
dh
fLFkfr
es
Hkw&/kkjdksa@okfn;ksa }kjk ek0 mPp U;k;ky; esa
vf/kd la[;k eas fjV ;kfpdk;as ;ksftr dh tk
jgh gSA uxj cLrh dk;kZy;ksa }kjk fjV
;kfpdkvksa eas foHkkxh; i{k le;kUrxZr lk{;kas
lfgr izcyrk ls izLrqr u fd;s tkus ds dkj.k
ek0 U;k;ky; }kjk ikfjr vkns'kksa ds dze esa
'kklu dks vleatliw.kZ fLFkfr dk lkeuk djuk
iM+ jgk gSA

4- vcZu lhfyax ds vU; izdj.k esa
jkT; ljdkj }kjk ek0 mPppe U;k;ky; ubZ
fnYyh
esa
fo'ks"k
vuqefr
;kfpdk
la[;k&12960@2008 mRrj izns'k jkT; cuke
gjhjke ;ksftr dh x;hA dkykUrj es vU;
tuinksa ds vcZu lhfyax ls lacf/kr izdj.kksa es
;ksftr fo'ks"k vuqefr ;kfpdk;sa mDr fo'ks"k
vuqefr ;kfpdk ls Dyc dh x;hA mDr fo'ks"k
vuqefr ;kfpdk la[;k&12960@2008 rFkk
mlls Dyc vU; fo'ks"k vuqefr ;kfpdkvksa esa
ikfjr ek0 mPpre U;k;ky; ds fu.kZ; fnukad
11-03-2013 es vcZu lhfyax ls lacf/kr izdj.kksa
es ekxZn'kZd fl)kUr izfrikfnr fd;s x;s gSaA
fu.kZ; fnukad 11-03-2013 dk egRoiw.kZ ,oa
fdz;kRed va'k fuEuor gS%&

izLrj& 39

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. 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 land owner or holder can claim the
benefit of Section 3 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 3 of the Repeal Act.

IzLrj&40

We, therefore, find no infirmity
in the judgment of the High Court and the
appeal is, accordingly dismissed so also
the other appeals. No documents have
been produced by the State to show that
the respondents had been dispossessed
before coming into force of the Repeal Act
and hence, the respondents are entitled to
get the benefit of Section 3 of the Repeal
Act. However, there will be no order as to
cost.

5- uxj Hkwfe 1⁄4vf/kdre lhek ,oa
fofu;eu1⁄2 fujlu vf/kfu;e] 1999 esa fofgr
izkfo/kku rFkk rRdze esa fuxZr 'kklukns'k fnukad
09-02-2000] 'kklukns'k fnukad 09-08-2000 ,oa
'kklukns'k fnukad 24-01-2001 Lor% Li"V gSA
fo'ks"k vuqefr ;kfpdk la[;k&12960@2008
mRrj izns'k jkT; cuke gjhjke rFkk mlls Dyc
4 All. Raju Vs. State of U.P. & Ors.
1171
vU; fo'ks"k vuqefr ;kfpdkvksa esa ikfjr ek0
mPpre U;k;ky; ds fu.kZ; fnukad 11-03-2013
esa mfYyf[kr fl)kUr@vkns'k Hkh Lor% Li"V gSaA

6- d`i;k uxj Hkwfe 1⁄4vf/kdre lhek
,oa fofu;eu1⁄2 fujlu vf/kfu;e] 1999 rFkk
mDr 'kklukns'k fnukad 09-02-2000] 'kklukns'k
fnukad 09-08-2000 ,oa 'kklukns'k fnukad 24-012001 esa fofgr O;oLFkk] fo'ks"k vuqefr ;kfpdk
la[;k&12960@2008 mRrj izns'k jkT; cuke
gjhjke esa ikfjr ek0 mPpre U;k;ky; ds
fu.kZ;
fnukad
11-03-2013
esa
mfYyf[kr
fl)kUrksa@vkns'kksa ds vkyksd esa yfEcr izdj.kksa
es Legal ingredients ns[krs gq, vko';d
dk;Zokgh dh tk;A
Hkonh;
g0 viBuh;
1⁄4iu/kkjh ;kno1⁄2

lfpo

la[;k ,oa fnukad rnSoA

izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa
vko';d dk;Zokgh gsrq izsf"krA

1- funs'kd uxj Hkwfe lhekjksi.k]
m0iz0 tokgj Hkou& y[kuÅ

2- l{ke izkf/kdkjh uxj Hkwfe
lhekjksi.k
xksj[kiqj]
okjk.klh]
bykgkckn]
y[kuÅ] dkuiqj] vkxjk] esjB] eqjknkckn]
vyhsx<] cjsyh] lgkjuiqjA

3- eq[; LFkk;h vf/koDrk ek0 mPp
U;k;ky;] bykgkckn

4- xkMZ QkbZyA
vkKk ls
1⁄4dYyw izlkn f}osnh1⁄2
mi lfpoA"

22. Now, the question before us is
whether in present set of facts the
proceedings shall abate in view of subsection (2) of Section 3 of the Act, 1999.
The issue regarding the abatement of the
Urban Land Ceiling Proceeding in terms
of sub-section (2) of Section 3 of the
Repeal Act fell for consideration before
the Supreme Court in some of the cases
and in a large number of the cases in this
Court. The law laid down in the unbroken
line of the judgments are that if at the
time of the enforcement of the Repeal Act
the possession has not been taken by the
State in terms of sub-section (5) or subsection (6) of Section 10 of the Act, 1976
then the proceedings under Section 1976
shall be abated.

23. In the case of Hari Ram (supra)
the Supreme Court has
elaborately
considered the scope of sub-section (5)
and sub-section (6) of Section 10 of the
Act, 1976 and the directions framed by
the State Government under Section 35 of
the Act, 1976 and the directions framed
by the State Government under U.P.
Urban
Land
Ceiling
(Taking
of
Possession, Payment of Amount and
Allied Matters) Direction 1983. The
relevant part of the judgment of the
Supreme Court reads thus:

"30. Vacant land, it may be
noted, is not actually acquired but
deemed to have been acquired, in that
deeming things to be what they are not.
Acquisition, therefore, does not take
possession unless there is an indication to
the contrary. It is trite law that in
construing a deeming provision, it is
necessary to bear in mind the legislative
purpose. The purpose of the Act is to
impose ceiling on vacant land, for the
acquisition of land in excess of the ceiling
limit thereby to regulate construction on
such lands, to prevent concentration of
urban lands in hands of few persons, so
as to bring about equitable distribution.
For
achieving
that
object,
various
procedures have to be followed for
acquisition and vesting. When we look at
those words in the above setting and the
provisions to follow such as sub-sections
(5) and (6) of Section 10, the words
"acquired" and "vested" have different
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
meaning and content. Under Section
10(3), what is vested is de jure possession
not de facto, for more reasons than one
because we are testing the expression on
a statutory hypothesis and such an
hypothesis can be carried only to the
extent necessary to achieve the legislative
intent.

Voluntary surrender

31. The "vesting" in sub-section
(3) of Section 10, in our view, means
vesting of title absolutely and not
possession though nothing stands in the
way of a person voluntarily surrendering
or delivering possession. The Court in
Maharaj Singh v. State of U.P.13, while
interpreting Section 117(1) of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 held that "vesting" is a word of
slippery import and has many meaning
and the context controls the text and the
purpose
and
scheme
project
the
particular semantic shade or nuance of
meaning. The Court in Rajendra Kumar v.
Kalyan14 held as follows: (SCC p. 114,
para 28)

"28.
...We
do
find
some
contentious substance in the contextual
facts, since vesting shall have to be a
"vesting" certain. 'To "vest", generally
means to give a property in.' (Per Brett,
L.J. Coverdale v. Charlton15 : Stroud's
Judicial Dictionary, 5th Edn. Vol. VI.)
Vesting in favour of the unborn person
and in the contextual facts on the basis of
a subsequent adoption after about 50
years without any authorization cannot
however but be termed to be a contingent
event. To 'vest', cannot be termed to be an
executor devise. Be it noted however, that
'vested' does not necessarily and always
mean 'vest in possession' but includes
'vest in interest' as well."

32. We are of the view that so
far as the present case is concerned, the
word "vesting" takes in every interest in
the property including de jure possession
and, not de facto but it is always open to a
person to voluntarily surrender and
deliver possession, under Section 10(3) of
the Act.

33. Before we examine subsection (5) and sub-section (6) of Section
10, let us examine the meaning of subsection (4) of Section 10 of the Act, which
says that during the period commencing
on the date of publication under subsection (1), ending with the day specified
in the declaration made under sub-section
(3), no person shall transfer by way of
sale, mortgage, gift or otherwise, any
excess vacant land, specified in the
notification and any such transfer made in
contravention of the Act shall be deemed
to be null and void. Further, it also says
that no person shall alter or cause to be
altered the use of such excess vacant land.
Therefore, from the date of publication of
the notification under sub-section (1) and
ending with the date specified in the
declaration made in sub-section (3), there
is no question of disturbing the possession
of a person, the possession, therefore,
continues to be with the holder of the
land.

Peaceful dispossession

34. Sub-section (5) of Section
10,
for
the
first time, speaks
of
"possession" which says where any land
is vested in the State Government under
sub-section (3) of Section 10, the
competent authority may, by notice in
writing, order any person, who may be in
possession of it to surrender or transfer
possession to the State Government or to
any other person, duly authorized by the
State Government.

35. If de facto possession has
already
passed
on
to
the
State
Government
by
the
two
deeming
4 All. Raju Vs. State of U.P. & Ors.
1173
provisions under sub-section (3) to
Section 10, there is no necessity of using
the expression "where any land is vested"
under sub-section (5) to Section 10.
Surrendering or transfer of possession
under sub-section (3) to Section 10 can be
voluntary so that the person may get the
compensation as provided under Section
11 of the Act early. Once there is no
voluntary
surrender
or
delivery
of
possession,
necessarily
the
State
Government has to issue notice in writing
under sub-section (5) to Section 10 to
surrender or deliver possession. Subsection (5) of Section 10 visualizes a
situation of surrendering and delivering
possession, peacefully while sub-section
(6) of Section 10 contemplates a situation
of forceful dispossession."

24. The case of Hari Ram (supra)
was followed by the Supreme Court in the
case of Gajanan Kamlya v. Addl.
Collector & Comp. Auth.& Ors.9. The
relevant part of the judgment is extracted
below:

"13. We have, therefore, clearly
indicated that it was always open to the
authorities to take forcible possession
and, in fact, in the notice issued under
Section 10(5) of the ULC Act, it was
stated that if the possession had not been
surrendered, possession would be taken
by application of necessary force. For
taking
forcible
possession,
certain
procedures
had
to
be
followed.
Respondents have no case that such
procedures were followed and forcible
possession was taken. Further, there is
nothing to show that the Respondents had
taken peaceful possession, nor there is
anything to show that the Appellants had
given voluntary possession. Facts would
clearly indicate that only de jure
possession had been taken by the
Respondents and not de facto possession
before coming into force of the repeal of
the Act. Since there is nothing to show
that de facto possession had been taken
from the Appellants prior to the execution
of the possession receipt in favour of
MRDA, it cannot hold on to the lands in
question, which are legally owned and
possessed
by
the
Appellants.
Consequently, we are inclined to allow
this appeal and quash the notice dated
17.2.2005 and subsequent action taken
therein in view of the repeal of the ULC
Act. The above reasoning would apply in
respect of other appeals as well and all
proceedings
initiated
against
the
Appellants,
therefore,
would
stand
quashed."

25.