# Ram Kumar Misra v. The Competent Authority Act,Authority & Ors

- **Citation:** (2019) 1 ILRA 1394
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-09
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kumar-misra-v-the-competent-authority-act-authority-ors-44419
- **Pages:** 23

## Headnote

A. Writ - Article 226 of Constitution-
Sections 10 (5) & 10 (6) of Urban Land
(Ceiling
&
Regulation)
Act,
1976-
Possesion of excess vacant land was not
taken-Petitioner
entitled
to
retain
possession of land-Case law discussed-
Writ Petition succeeds. (E-1)

## Text

_Characters 0–39,853 of 73,159. This is a partial read: ask again with offset=39853 for what follows._

1394 INDIAN LAW REPORTS ALLAHABAD SERIES
reversed by LAC observing that Sattar
had no brother but had two daughters and
his property was succeeded by two
daughters hence evidently findings of
Trial Court have been reversed. Thus
LAC was justified in passing a judgment
of reversal.

32.

Substantial
question
(II)
therefore, is answered against appellant.

33. Appeal lacks merit. Dismissed.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2019

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

WRIT C NO.11150 of 2000

Ram Kumar Misra ...Petitioner
Versus
The Competent Authority Act,Authority &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Chandan Sharma, Sri P.H. Vashistha, Sri S.
Narain, Sri Vijay Bahdur Singh, Sri Vinod
Shankar Tripathi, Sri B.D. Sharma Sri U.N.
Sharma, Sri Chandan Misra.

Counsel for the Respondents:
C.S.C., Ms. Subhash Rathi, Sri Vineet Pandey,
Sri Tejaswi Mishra.

A. Writ - Article 226 of Constitution-
Sections 10 (5) & 10 (6) of Urban Land
(Ceiling
&
Regulation)
Act,
1976-
Possesion of excess vacant land was not
taken-Petitioner
entitled
to
retain
possession of land-Case law discussed-
Writ Petition succeeds. (E-1)

(Delivered by Hon'ble Rajeev Misra J.)

1. Ram Kumar Misra, the writ petitioner
has filed present writ petition under Article
226 of the Constitution of India, challenging
order dated 30.12.1981 (Annexure 1 to the
writ petition), passed by respondent No.1
Competent Authority (Urban Land Ceiling ),
Bareilly, whereby an area of 8258.21 Sqmeters of land of petitioner has been declared
as excess-vacant land and notice dated
24/25.1.2000 (Annexure-4 to the writ petition)
also issued by respondent No.1 purported to
be under Section 11 (8) of the Urban Land
(Ceiling & Regulation) Act, 1976 (herienafter
referred to as 'Act 1976') asking the petitioner
to file his objections, if any, alongwith
evidence before respondent-1 on or before
3.2.2000 to the proposed compensation in lieu
of land belonging to petitioner being declared
as excess-vacant land. Apart from aforesaid
reliefs, petitioner has also prayed for a writ of
mandamus commanding respondents not to
dispossess petitioner from land in dispute.

2. We have heard Sri Vijay Bahadur
Singh, learned Senior Advocate assisted by
Sri P.H. Vashishtha, learned counsel for
petitioner, Mrs. Subhash Rathi, learned
Additional Chief Standing Counsel for Staterespondents
and
Sri
Tejaswi
Mishra,
Advocate holding brief of Sri Vineet Pandey,
learned counsel appearing for respondent no.
3
Bareilly
Development
Authority
(hereinafter referred to as 'B.D.A').

3. It transpires from record that
petitioner is a recorded Tenure Holder of
survey plot Nos. 587 area 0.0468
hectares, 588 area 0.333 hectares and 589
area 0.721 hectare, situate in village,
Haroo Nagla, District Bareilly.

4. Act of 1976, came into force on
17.2.1976. By means of Act 1976, a
ceiling limit regarding land which can be
held by a Tenure Holder was provided.
1 All. Ram Kumar Misra Vs. The Competent Authority Act, Authority & Ors.
1395
Section 4 of Act 1976 provides for
different ceiling limits in different Urban
Agglomerations
falling
in
different
categories. Section 6 mandates that every
person who is holding land in excess of
concerned ceiling limit shall file an
statement before competent authority
regarding land held by him. After the
statement has been filed by Tenure
Holder, competent authority under section
6 of Act 1976 after such survey, as it may
deem fit to make, shall prepare a draft
statement in respect of person who has
filed
the
statement.
Thereafter
in
compliance of section 8 of Act 1976,
Competent Authority is required to issue a
draft statement to Tenure Holder as
regards vacant land held by him in excess
of ceiling limit. In turn by virtue of sub
section (4) of section 8, Tenure Holder is
required to file his objections to draft
statement within a period of 30 days from
date of service of draft statement/notice
under section 8 of Act 1976. After
disposal of objections preferred by Tenure
Holder, Competent Authority is required
to decide the same. Thereafter as per
section 9 of Act 1976, Competent
Authority is required to prepare final
statement determining vacant land held by
a Tenure Holder in excess of ceiling limit.
Section 9 further provides that final
statement shall be served on Tenure
Holder as per the procedure provided
under section 8 (3) of Act 1976. Section
10 of Act 1976 contemplates that after
service of final statement prepared under
section 9 of Act 1976, Competent
Authority shall cause a notification to be
published in Official Gazette of the State
concerned regarding land held by such
person in excess of ceiling limit. The
notification is to further state that such
vacant land is to be acquired by
concerned State Government and claims
of all person interested in such vacant
land may be made by them personally or
by an Agent giving particulars of the
nature of their interests in such land. Sub
section (2) of section 10 provides for the
disposal of objections preferred by such
person who claims interest in the land
proposed to be acquired. Sub section (3)
of section 10 contemplates deemed
acquisition of excess vacant land of
Tenure Holder and vesting of same in the
State
Government
free
from
all
encumbrances. Sub section (4) of Section
10 puts a rider on the Tenure Holder
whose land has been declared as excess
vacant land or any other person not to
transfer any excess vacant land or part
thereof by way of sale, mortgage, gift,
lease or otherwise. Sub section (5) of
section 10 provides that after the land
declared as excess-vacant land has vested
in
State
Government,
Competent
Authority may by notice in writing order
any person who may be in possession of
excess-vacant land declared surplus, to
surrender or deliver possession thereof to
the State Government or to any person
duly authorised by State Government in
this behalf within 30 days from the date of
service of notice issued under section 10
(5). Thus, section 10 (5) of Act 1976
contemplates
voluntary
surrender
of
possession upon notice by a Tenure
Holder. Sub Section (6) of section 10
provides that upon failure to comply with
an order made under sub section (5) of
section 10 i.e. failure to surrender
possession
voluntarily,
Competent
Authority may forcibly take possession of
land declared as excess-vacant land.
Section 11 of Act 1976, provides for
payment of compensation in lieu of land
acquired upon declaration as excessvacant land. Section 12 provides for the
constitution of Urban Land Tribunal and
1396 INDIAN LAW REPORTS ALLAHABAD SERIES
an appeal to Urban Land Tribunal against
an order passed by Competent Authority
under section 11 of Act 1976. Section 33
of Act 1976 provides for an appeal
against an order passed by competent
authority except an order passed under
section 11 or under sub-section (1) of
Section 30.

5. Accordingly, as per scheme of
Act 1976 as noted herein above, petitioner
submitted draft statement of land held by
him
before
respondent-1
Competent
Authority (Urban Land Ceiling) Bareilly
on 14.9.1976 in terms of Section 6 (1) of
Act 1976. After submission of draft
statement by petitioner, survey of land
held by petitioner was got conducted in
terms of section 6 of Act 1976 and a
survey
report
dated
26.9.1980
was
submitted. On the basis of survey report
dated 26.9.1980, a draft notice dated
27.4.1981, purported to be under section 8
of Act 1976 was issued to petitioner
proposing to declare 8258.21 sq-meters of
land belong to petitioner, as excess-vacant
land. In response to aforesaid notice,
petitioner submitted his objections dated
20.7.1981. According to petitioner, no
land belong to him was liable to be
declared as excess-vacant land, as same is
being used for agriculture purpose. In
case, land shown as excess-vacant land in
site plan in red colour is acquired,
remaining land of petitioner shall be in
fragments. Petitioner shall not be able to
efficiently use the same. Except for the
tenure comprised in survey plot nos. 587,
588 and 589, there is no other tenure of
petitioner. Even in the aforesaid tenure,
petitioner has only one half share and
remaining one half share belongs to
Jagdish Saran, son of Siya Ram. It was
also pleaded that land shown in draft
notice is agricultural land and therefore
not liable to be declared as excess vacant
land under Act 1976 as said Act does not
apply to agricultural land. In the land
proposed to be declared as excess-vacant
land, there situate a boring, well and jack
fruit trees which have not been considered
while issuing draft notice to petitioner.
Subsequently, petitioner filed an application
dated 25.9.1981, praying therein that he be
granted benefit contemplated under section
20 of Act 1976 and accordingly land of
petitioner
be
exempted
from
ceiling
proceedings. However, inspite of the fact that
petitioner filed his objections to draft
statement, but his counsel did not appear
before Competent Authority (Urban Land
Ceiling)
on
the
date
of
hearing.
Consequently,
respondent-1,
Competent
Authority (Urban Land Ceiling) Bareilly,
vide order dated 30.12.1981, declared an area
of 8258.21 sq-meters of land, belong to
petitioner, as excess-vacant land. It was
further directed that notice under section (9)
of Act 1976 be issued to petitioner followed
by publication in terms of section 10 of Act
1976. The notification to be published in
Official Gazette regarding excess-vacant
land
of
petitioner
was
prepared
by
Competent Authority (Urban Land Ceiling),
Bareilly, on 21.5.1982 and sent to State
Government for publication, vide office
memorandum dated 29.9.1983. The same
was published in Official Gazette on
30.11.1985. Notice dated 23.1.1986 under
section 10 (5) was issued to petitioner by
respondent
no.1,
Competent
Authority
(Urban Land Ceiling) Bareilly, asking
petitioner to hand over possession of land
declared as excess-vacant land within a
period of 30 days from the date of receipt of
notice dated 23.1.1986. Perusal of aforesaid
notice goes to show that same has not been
served
upon
Tenure
Holder
as
no
endorsement to that effect is contained
therein. Thus the notice under section 10 (5)
1 All. Ram Kumar Misra Vs. The Competent Authority Act, Authority & Ors.
1397
of Act 1976 was neither directly served
upon petitioner/Tenure Holder nor by way
of substituted service. There is no notice
under section 10 (6) of Act 1976 on
record. What is there on record is a
possession
memo
dated
26.2.1986
containing signatures of two witnesses
namely Brij Bihari Gupta and Ashok
Kumar Pathak and the person who took
possession. The signature of person who
gave possession and also of Tenure
Holder are conspicuous by their absence.
Ultimately notice dated 24.1.2000 under
section 11 (8) of Act 1976 which provides
for payment of compensation in lieu of
land declared as excess vacant land was
issued by Competent Authority (Urban
Land Ceiling), Bareilly, after 18 years
from
the
passing
of
order
dated
30.12.1982. We have not found any
document in original record regarding
payment of compensation to petitioner in
lieu of land declared as excess-vacant
land.

6. It may be noticed here that order
dated 30.12.1981, passed by respondent
No.1, Competent Authority (Urban Land
Ceiling), under section 8 (4) of Act 1976
is appealable under section 33 of Act
1976, but as no appeal was filed by
petitioner,
consequential
proceedings
subsequent to an order passed under
section 8 (4) of Act 1976 came into
motion. Accordingly, a notice dated
24/25.1.2000 purported to be under
section 11 (8) of Act 1976 came to be
issued by respondent no.1, Competent
Authority (Urban Land Ceiling) Bareilly,
to petitioner asking him to file his
objections, if any, alongwith evidence
before the Competent Authority itself on
or before 3.2.2000 to the proposed
compensation, in lieu of the land of
petitioner declared as excess-vacant land.
Thus, the aforesaid notice has been issued
to petitioner after a gap of 18 years from
date of order dated 30.12.1981.

7. The controversy involved in
present writ petition is confined within the
parameters of section 10 of Act 1976. For
ready reference Section 10 of Act 1976 is
reproduced herein below:-

"10. Acquisition of vacant land
in excess of ceiling limit.-(1) As soon as
may be after the service of the statement
under section 9 on the person concerned,
the competent authority shall cause a
notification giving the particulars of the
vacant land held by such person in excess
of the ceiling limit and stating that-

(i) such vacant land is to be acquired
by the concerned State Government; and

(ii) the claims of all person
interested in such vacant land may be made by
them personally or by their agents giving
particulars of the nature of their interests in
such land,

to
be
published
for
the
information of the general public in the
Official Gazette of the State concerned
and in such other manner as may be
prescribed.

(2) After considering the claims
of the persons interested in the vacant
land, made to the competent authority in
pursuance of the notification published
under sub-section (1), the competent
authority shall determine the nature and
extent of such claims and pass such
orders as it deems fit.

(3) At any time after the
publication of the notification under
sub-section (1) the competent authority
may, by notification published in the
Official Gazette of the State concerned,
declare that the excess vacant land
1398 INDIAN LAW REPORTS ALLAHABAD SERIES
referred to in the notification published
under sub-section (1) shall, with effect
from such date as may be specified in the
declaration, be deemed to have been
acquired by the State Government and
upon the publication of such declaration,
such land shall be deemed to have vested
absolutely in the State Government free
from all encumbrances with effect from
the date so specified.

(4)
During
the
period
commencing on the date of publication of
the notification under sub-section (1) and
ending with the date specified in the
declaration made under sub-section (3)-

(i) no person shall transfer by
way of sale, mortgage, gift, lease or
otherwise
any
excess
vacant
land
(including any part thereof) specified in
the notification aforesaid and any such
transfer made in contravention of this
provision shall be deemed to be null and
void; and

(ii) no person shall alter or
cause to be altered the use of such excess
vacant land.

(5) Where any vacant land is
vested in the State Government under subsection (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.

(6) If any person refuses or fails
to comply with an order made under subsection (5), the competent authority may
take possession of the vacant land or
cause it to begiven 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."
 (Emphasis added)

8. In order to give effect to the
provision of section 10 (5) and section 10
(6) of Act 1976, State Government in
exercise of powers under section 35 of
Act 1976 issued directions for taking
possession of land declared as excessvacant land by Competent Authority. The
same are reproduced herein under:-

"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):

"In exercise of the powers under
Section 35 of the Urban Land (Ceiling
and Regulation Act, 1976 (Act No.33 of
1976), the Governor is pleased to issue
the following directions relating to the
powers and duties of the Competent
Authority in respect of amount referred to
in Section 11 of the aforesaid Act to the
person or persons entitled thereto:

1. Short title, application and
Commencement -These directions may be
called the Uttar Pradesh Urban Land
1 All. Ram Kumar Misra Vs. The Competent Authority Act, Authority & Ors.
1399
Ceiling (Taking of Possession Payment of
Amount and Allied Matters Directions,
1983)

(2). The provisions contained in
this direction shall be subjected to the
provisions of any directions or rules or
orders issued by the Central Government
with such directions or rules or orders.

(3). They shall come into force
with effect from the date of publication in
the gazette.

2. Definitions:-

3.
Procedure
for
taking
possession of vacant Land in excess of
Ceiling
Limit-
(1)
The
Competent
Authority will maintain a register in From
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. (2) An order in Form
No.ULC-II will be sent to each landholder
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-1.

(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

Register of Notice under Section 10-
(3) and 10(5)

1
2
3
4
5
6
7
8
9
10
11
Sl.
No
.
Sl.
No
. of
reg
ist
er
of
rec
eip
t
Sl.
No
. of
reg
ist
er
of
tak
ing
po
sse
ssi
on
Ca
se
nu
mb
er
Da
te
of
No
tifi
cat
ion
un
der
Se
cti
on
10(
3)
La
nd
to
be
ac
qui
red
Vil
lag
e
M
oh
ali
Da
te
of
tak
ing
ov
er
po
sse
ssi
on
Re
ma
rks
Sig
nat
ure
of
co
mp
ete
nt
aut
hor
ity

Form NO. ULC-II

Notice order u/s 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
1400 INDIAN LAW REPORTS ALLAHABAD SERIES
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
Notification1 No.324/II-27- U.C.77 dated
9-2-1977, published in the gazette, dated
12-3-1977, 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

Location
Khasra No.
indentificatio
n

Area
Remarks
1
2
3
4

Competent Authority

...............................

...............................

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

No.........

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 copy of the certificate to verify.

Competent Authority

...............................

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

(Emphasis added)

9. Act 1976 came to be repealed by
"The Urban Land (Ceiling and Regulation)
Repeal Act, 1999 (Act 15 of 1999)"
(hereinafter referred to as "Act 1999").
Repeal Act protected rights of Tenure
Holders whose land was declared as excessvacant land provided possession thereof had
not been taken. Act 1999 reads as under:-

"THE URBAN LAND ( CEILING
AND REGULATION ) REPEAL ACT,
1999

(No 15 of 1999)

[18th March, 1999]

An Act to repeal the Urban
Land (Ceiling and Regulation ) Act 1976.

Be it enacted by Parliament in
the Fiftieth Year of the Republic of India
as follows:-

1. Short title, application and
commencement. (1) This Act may be
called the UrbanLand (Ceiling and
Regulation) Repeal Act, 1999.

(2) It applies in the first
instance to the whole of the State of
Haryana and Punjab and to all the Union
territories; and it shall apply to such
other State which adopts this Act by
resolution passed in that behalf under
clause
(2)
of
article
252
of
the
Constitution.

(3) It shall be deemed to have
come into force in the States of Haryana
and Punjab and in all the Union
territories on the 11th day of January,
1999 and in other other State which
adopts this Act under clause (2) of article
252 of the Constitution on the date of such
adoption; and the reference to repeal of
the Urban Land (Ceiling and Regulation)
Act, 1976 shall, in relation to any State or
Union territory, mean the date on which
this Act comes into force in such State or
Union territory.
1 All. Ram Kumar Misra Vs. The Competent Authority Act, Authority & Ors.
1401

2. Repeal of Act 33 of 1976-
The UrbanLand (Ceiling and Regulation)
Act, 1976 (hereinafter referred to as the
principal Act) is hereby repealed.

3. Savings.- (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
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 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 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
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.

5. Repeal and saving (1) The
UrbanLand (Ceiling and Regulation)
Repeal Ordinance, 1999 (Ord. 5 of 1999)
is hereby repealed.

(2)
Notwithstanding
such
repeal, anything done or any action taken
under the said Ordinance shall be deemed
to have been done or taken under the
corresponding provisions of this Act."

10. Instant writ petition was filed on
01.03.2000. It came up for admission on
03.03.2000
and
this
Court
passed
following interim order;-

"Heard
Sri
Shyam
Narain,
learned counsel for the petitioner as well
as learned Standing Counsel.

Learned counsel for the petitioner
has pointed out that the land which was
declared to be surplus cannot be acquired in
view of section 5 of the UrbanLand (Ceiling
And Regulation) Act, 1976.

Let the counter affidavit be filed
by the respondents within six weeks.

List this case after six weeks.

In the meantime, if the petitioner
has not already been dispossessed from the
surplus land, his possession thereon shall not
be disturbed."
1402 INDIAN LAW REPORTS ALLAHABAD SERIES

11. In compliance of interim order
dated
03.03.2000,
affidavits
were
exchanged between the parties. The writ
petition came to be heard by a Division
Bench of this Court on 31.5.2019, where
it passed following order:-

"Sri
Mohan
Ji
Srivastava,
learned Standing Counsel, has produced
the original record before us.

"The original record does not
show that the notice under Section 10(5)
of
theUrbanLand
(Ceiling
and
Regulation) Act, 1976 was issued to the
petitioner as there is no remark about
the service of notice. It has also been
pointed out that in the counter affidavit
the respondents have not made any
assertion regarding service of notice
under Section 10(5) and 10(6) of the said
Act.

Learned Additional Advocate
General Sri M.C. Chaturvedi has pointed
out that the land in question has been
transferred to the Bareilly Development
Authority but the petitioner has not
impleaded the Bareilly Development
Authority as one of the respondents in the
writ petition.

Although we do not find any
document in the original record to indicate
that the State has transferred the land to the
Bareilly Development Authority, but in the
interest of justice we grant time to the
learned counsel for the petitioner to implead
the Bareilly Development Authority as one of
the respondents.

Learned
counsel
for
the
petitioner submits that the petitioner is
still in possession.

Needless to say that the interim
order dated 03rd March, 2000 shall
continue until further orders.

Put up this case on 10th July,
2019 in the additional cause list.

The original record is returned
to Sri Mohan Ji Srivastava, learned
Standing Counsel." (Emphasis added)

12. In compliance of order dated
31.5.2019, B.D.A was duly impleaded as
respondent No. 3 in the writ petition.

13. Mr. Vijay Bahadur Singh,
learned senior counsel appearing for
petitioner has fairly conceded that he does
not wish to press the writ petition in
respect of prayers 1 and 2. The writ
petition be confined to prayer No. 3 alone
in view of Repeal Act of 1999.

14. According to learned Senior
Counsel,
petitioner
being
in
actual
physical possession of entire tenure held
by him, cannot be dispossessed from part
of the same which has been declared as
excess-vacant land. Reliance is placed
upon section 3 (2) (a) of Repeal Act,
1999, which saves the possession of such
Tenure Holders whose land has been
declared as excess-vacant land, but
possession thereof has not been taken. He
further submits that section 10 (3) of Act
1976 speaks of vesting but the possession
of land so vested is provided under
section 10 (5) and 10 (6) of Act 1976.
Mere vesting of land under section 10 (3)
by itself is not sufficient to deprive
Tenure Holder of his right to possession
of land declared as excess-vacant land.
Until and unless possession of land
declared as excess-vacant land has been
voluntarily surrendered by Tenure Holder
in terms of section 10 (5) or forcibly taken
under section 10 (6) of the Act 1976,
Tenure Holder cannot be deprived of his
right to retain possession of land declared
as excess-vacant land. He further submitts
1 All. Ram Kumar Misra Vs. The Competent Authority Act, Authority & Ors.
1403
that there is nothing on record to show
that petitioner has been dispossessed from
land declared as excess-vacant land or the
land of petitioner declared as excessvacant land has been transferred to
B.D.A., at any point of time.

15. It is the submission of learned
Senior Counsel that from pleadings
exchanged between the parties, it is clear
that Competent Authority (Urban Land
Ceiling), Bareilly, vide order dated
30.12.1981 declared an area of 8258.21
square metre of land belong to petitioner
as excess-vacant land. However, notice
under section 10 (5) of Act 1976 was
issued to petitioner/Tenure Holder on
23.1.1986, but the same does not contain
any endorsement regarding service of
same upon petitioner directly or by
substituted service. There is no notice
under section 10 (6) of Act, 1976 on
record. As such, he submits that no notice
under section 10 (6) of Act, 1976 was
ever issued to petitioner. He thus
concludes
that
neither
petitioner
voluntarily surrendered possession of land
declared as excess-vacant land nor
possession thereof was forcibly taken
from petitioner.

16. However, respondents have
relied upon a possession memo dated
26.2.1986 to allege that possession of land
declared as excess-vacant land was taken
by Competent Authority on 26.2.1986.
Perusal of possession memo goes to show
that it has been signed by the person who
has taken possession and two witnesses
namely, Brij Bahadur Gupta and Ashok
Kumar Pathak. However, name of the
person who gave possession is neither
mentioned nor the possession memo bears
his signature. It does not even contain
signatures of petitioner. The parentage
and address of two witnesses have also
not been mentioned. As such possession
of land declared as excess-vacant land
was never forcibly taken from petitioner.
He thus submits that petitioner is entitled
to retain possession of land declared as
excess-vacant land as possession of same
was never taken from petitioner. As such,
prayer-3 made in the writ petition,
whereby a writ of mandamus has been
prayed commanding respondents not to
dispossess petitioner from land in dispute
is liable to be allowed.

17. Mrs. Subhash Rathi, learned
Additional
Chief
Standing
Counsel,
opposing the contentions raised by
learned Senior Counsel has submitted that
under scheme of Act 1976, once vesting
has taken place in favour of State
Government under section 10 (3) of Act
1976, then in that event by operation of
law, State Government becomes absolute
owner of land declared as excess-vacant
land. In such eventuality, question of
possession is only symbolic. She further
submits that part of land belong to
petitioner was declared as excess-vacant
land, vide order dated 30.12.1981. The
writ petition has been preferred in the
year 2000 i.e. after 19 years from the date
of passing of order dated 30.12.1981, but
there is nothing on record to establish
continuous
physical
possession
of
petitioner over land declared as excessvacant land. She further submits that once
land declared as excess-vacant land, has
vested
in
State
free
from
all
encumbrances, possession if any of
petitioner over the land already declared
as excess-vacant land will be in nature of
adverse possession. It is well settled that
plea of adverse possession cannot be
pleaded against State and on this ground
also the petitioner is not entitled to relief
1404 INDIAN LAW REPORTS ALLAHABAD SERIES
No. 3 prayed for in the writ petition.
Lastly, she submits that possession memo
dated 26.2.1986 clearly proves that
possession of land declared as excessvacant land has already been taken.
Placing reliance upon a Division Bench
judgement of this Court in Shiv Ram Singh
Vs. State of U.P. And others, 2015 (5)
AWC 4918, she submits that irrespective of
the fact whether possession has been taken
rightfully or wrongfully, it will make no
difference. Once petitioner whose land has
been declared as excess-vacant has been
dispossessed from the same, he cannot claim
benefit of section 3 (2) (a) of Repeal Act,
1999; as such petitioner is not entitled to any
relief prayed for.

18. Mr. Tejaswi Misra, Advocate
holding brief of Mr. Vineet Pandey,
learned counsel for respondent no.3,
B.D.A. has submitted that land of
petitioner which was declared as excessvacant land, vide order dated 30.12.1981
was
never
transferred
to
Bareilly
Development Authority.

19. On the basis of respective
arguments made by counsel for the
parties,
following
issues
arise
for
determination.

(a) Whether vesting of land
declared as excess-vacant land under
section 10 (3) of Act 1976 is complete,
and question of possession is immaterial.

(b) What is the combined effect
of Act 1976 and 1983 directions issued by
State Government.

(c) Whether a Tenure Holder is
entitled to retain possession of land
declared as excess-vacant land, if no
possession of same has been taken by
Competent Authority in terms of Section
10 (5) or Section 10 (6) of Act 1976.

20. All the three issues arising for
consideration
are
inter
linked
and
therefore, being dealt with together. We
have already referred to the scheme of
Act 1976. Section 10 (3) of the Act
speaks
of
acquisition
by
State
Government and upon publication of such
declaration, such land shall be deemed to
have
vested
absolutely
in
State
Government free from all encumbrances
with effect from the date so specified.
Admittedly, in the present case, gazette
notification was made on 30.11.1985.
Thus, the question which emerges for
consideration is, whether on 30.11.1985,
the excess vacant land of petitioner stood
vested in State Government free from all
encumbrances or possession of same was
required to be taken by competent
authority in terms of section 10 (5) and 10
(6) of Act 1976 and in case possession
was not taken whehter the petitioner is
entitled to retain possession.

21. The issue involved is no longer
res-integra,. The same came to be
considered in State of U.P. Vs. Hariram,
2013 (4) SCC 280. Mr. V.B. Singh,
learned Senior Advocate, has heavily
relied upon aforesaid judgement in
support of his submission that possession
of excess vacant land if not taken under
section 10 (5) or 10 (6) of Act 1976, then
the Tenure Holder is entitled to benefit of
Repeal Act 1999. Court in paragraphs 21,
22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32,
33, 34, 35, 36, 37, 39, 42 has said:

21. Let us test the meaning of
the expressions "deemed to have been
acquired" and "deemed to have been
vested absolutely" in the above legal
1 All. Ram Kumar Misra Vs. The Competent Authority Act, Authority & Ors.
1405
settings. The expressions "acquired" and
"vested" are not defined under the Act.
Each word, phrase or sentence that we
get in a statutory provision, if not defined
in the Act, then is to be construed in the
light of the general purpose of the Act. As
held by this Court in Organo Chemical
Industries v. Union of India [(1979) 4
SCC 573 : 1980 SCC (L&S) 92] that a
bare mechanical interpretation of the
words and application of a legislative
intent devoid of concept of purpose will
reduce
most
of
the
remedial
and
beneficial legislation to futility. Reference
may also be made to the judgment of this
Court in Directorate of Enforcement v.
Deepak Mahajan [(1994) 3 SCC 440 :
1994 SCC (Cri) 785] . Words and
phrases, therefore, occurring in the
statute are to be taken not in an isolated
or detached manner, they are associated
on the context but are read together and
construed in the light of the purpose and
object of the Act.

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

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

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

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

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

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

"Vest.-(1) To give a person a
legally fixed, immediate right or personal
or future enjoyment of (an estate), to
grant, endow, clothe with a particular
1406 INDIAN LAW REPORTS ALLAHABAD SERIES
authority, right of property, (2) To
become legally vested; (TP Act)

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

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

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

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

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

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

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

29. What is deemed "vesting
absolutely" is that "what is deemed to
have acquired".