# Ram Singh and Ors v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 633
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-22
- **Case number:** Civil Misc. Writ Petition No. 8983 of 2012
- **Bench:** Sheo Kumar Singh, Brijesh Kumar Srivastava-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-singh-and-ors-v-state-of-u-p-and-ors-42608
- **Pages:** 18

## Text

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2 All] Ram Singh and Ors. Vs. State of U.P. and others
633
basis of alleged selection of the year
1994."

29. In the instant case, although, the
petitioners were selected for appointment on
the post in question and their names find
place in the select list published on
09.09.1994 but the order for appointment on
the post in question has been issued in the
year 2005-2006 after completing all the
necessary formalities, so their actual date of
appointment in the Department is the date on
which they were appointed on the post in
question (i.e. in the year 2005-2006) and not
09.09.1994, when the select list was
published. Hence, the petitioners were not
appointed on the post of part time Tube Well
Operators before 30, June, 1998, as per the
rule 4 of Regularization Rules 1996. Thus,
there is no illegality or infirmity in the
impugned order dated 21.04.2004 passed by
Engineer in Chief and the petitioner cannot
claim any benefit from the letter/order dated
17.03.2005 or on the basis of the argument
advanced on their behalf in view of the
judgment passed by this Court in the case of
Indra Kumar Singh (Supra). So, the same
is
not
applicable
in
the
facts
and
circumstance of the present case.

30. In the result, writ petition lacks
merit and is dismissed as the same is not
applicable in the facts and circumstances
of the present case.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2013

BEFORE
THE HON'BLE SHEO KUMAR SINGH, J.
THE HON'BLE BRIJESH KUMAR
SRIVASTAVA-II,J.

Civil Misc. Writ Petition No. 8983 of 2012
Alongwith

W.P. No. 8983/2012; W.P. No. 7786 of
2012, W.P. No. 4749 of 2012, W.P.
No.4747 of 2012, W.P. No. 4744 of 2012,
W.P. No.4742 of 2012, W.P. No.2097 of
2012 , W.P. No.72929 of 2011, W.P. No.
62127 of 2011, W.P. No.47694 of 2011,
W.P. No.8978 of 2012, W.P. No.40109 of
2012, W.P. No.26263 of 2010 , W.P.
No.27034 of 2010, W.P. No.8982 of 2012,
W.P. No.45593 of 2010, W.P. No.39835 of
2010, W.P. No. 27035 of 2010 , W.P.
No.36079 of 2011, W.P. No.33230 of 2011,
W.P. No.23460 of 2011, W.P. No.42419 of
2011, W.P. No. 41660 of 2011, W.P. No.
41658 of 2011, W.P. No.39114 of 2011,
W.P. No. 25048 of 2012, W.P. No. 29064 of
2012, W.P. No. 29067 of 2012, W.P.
No.29068 of 2012, W.P. No.29133 of 2012,
W.P. No. 29339 of 2012, W.P. No.37906 of
2012, W.P. No.44259 of 2012, W.P.
No.44261 of 2012, W.P. No.44264 of 2012,
W.P. No. 53736 of 2012, W.P. No.53737 of
2012, W.P. No. 53741 of 2012, W.P.
No.55877 of 2012, W.P. No.55880 of 2012 ,
W.P. No.55885 of 2012 W.P. No.55886 of
2012, W.P. No. 57828 of 2012 W.P. No.
63422 of 2012, W.P. No.63424 of 2012,
W.P. No. 63425 of 2012 W.P. No. 63427 of
2012, W.P. No.67104 of 2012, W.P.
No.67106 of 2012, W.P. No.67109 of 2012,
W.P. No. 67110 of 2012 , W.P. No.67112 of
2012, W.P. No.10150 of 2010, W.P. No.
13847 of 2009, W.P. No.48469 of 2009 ,
W.P. No.32782 of 2011, W.P. No. 32787 of
2011, W.P. No.39212 of 2010, W.P.
No.35429 of 2009 , W.P. No.34028 of
2009, W.P. No.38257 of 2011

Ram Singh and Ors. ...Petitioner
Versus
State of U.P. and Ors. ...Respondents

Urban Land(Ceiling and Regulation)Act 1976Section 10(5)- Possession of surplus landsymbolic possession is no possession-unless
notice in writing served-notice against dead
person-or change in revenue entry-without
634 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
executing possession memo-without name
and address of two witness-presumption of
possession of land owners shall be-state can
not interfere with their possession.

Held: Para-43
In view of the aforesaid discussions and
examination of various aspects in various
judgments it is clear that if proceedings
have started by sending notice against the
dead person at any stage then that will not
divest the landholder of his rights. There
has to be proper service as provided under
Section 10(5) of the Act. There has to be
proper service under Section 10(6) of the
Act.
Required
procedure
has
to
be
followed. Possession is to be taken by the
competent authority. Possession has to be
actual physical and not symbolic. Mere
change in the entry is also not the enough
proof of dis-possession. The effect of the
Repeal of the Principal Act is so clear and
loud which permits the rights with the
landholders if actual physical possession
has not been taken over by the State or by
any person duly authorized by the State
Government in its behalf after due notice
and service in accordance with law.

Case Law discussed:
2010 (81)456; 2010 (81) ALR 215; 2010(81)ALR
85; 2010 (81) ALR 216; 2013 (118) RD 306; 2009
(75) ALR 873; 2012(2) AWC 2123; 2012(90)ALR
818; 2011 (5) ADJ638; 2005 (61) ALR 873;
2010(82) ALR 136; 2009 (1) ADJ 583; 2007 (4)
ADJ 426; S.L.P. (Civil) No. 12960/2008/; JT
2013(4) SC 275

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

1. These are large number of writ
petitions in which several points are there
but more or less they are common and
therefore, for convenience, as requested by
both sides all are being taken together and
are being decided by a common judgment.

2. Facts are not in much issue except
formal and usual denial without any
supportive material and thus the Court
feels that by making cases in bunch
covered by a particular point, all may be
decided in one go.

3. All the writ petitioners challenges
the
interference
by
the
District
Administration in their rights to continue in
peaceful possession on the pretext of the land
having declared as surplus under The Urban
Land (Ceiling and Regulation) Act, 1976.

4. We are to first notice the facts
which are stated in all the petitions mainly
to the same effect in different language,
which can be summarised as under-

5. Petitioners are owner and in
possession of the land in dispute. Although the
land was declared as surplus but at no point of
time actual physical possession was taken by
the competent authority. In some of the cases
proceedings/notice is said to have been given
against the dead person and in some of the
cases proceedings only upto issuance of notice
under Section 10(5) of The Urban Land
(Ceiling and Regulation) Act, 1976 herein
after referred to as the Act remained and that
too without any proper service on the land
holder. In some of the cases notice is said to
have been issued under Section 10(6) of the
Act but it has not been served and in some of
the cases for taking the actual physical
possession there is no document on record. In
some of the cases although Dhakhalnama is
there but there is no detail of the witness i.e.
father's name, address and in none of the cases
competent authority is said to have taken
possession. Lekhpal, Consolidation Officer
and other alike authorities are not competent
to take possession. In none of the cases there
is any overt and positive action on the part of
the respondents to display taking of the actual
physical possession. Taking of possession in
none of the cases being in acco-*rdance with
law even if there is some entry in favour of the
2 All] Ram Singh and Ors. Vs. State of U.P. and others
635
respondents that cannot be indicative of taking
of actual physical possession.

6. Thus on the facts and totality of the
situation
emphasis
is
that
petitioners
continued and are continuing in actual
physical possession over the land in dispute
and the actual physical possession having not
taken in accordance with law by the
competent authority petitioners will continue
with their rights and they will be entitled to
get their name/entry restored in the revenue
papers if that has been expunged.

7. It is in the aforesaid premises, we are
to just refer relevant provisions of the Act
then the decided cases on the points of this
court and the recent judgment of the Apex
Court in which more or less various aspects
touched by this court has been confirmed.

8. In the beginning it will be useful to
quote various sub. Clauses of Section 10 of
the The Urban Land (Ceiling and Regular)
Act, 1976, relevant for our purposes-

"10(3) At any time after the
publication of the notification under subsection (1), the competent authority may,
by notification published in the Official
Gazette of the State concerned, declare
that the excess vacant land referred to in
the notification published under subsection (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.

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 subsection (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.

At this stage, we are to quote Section
3 of the Urban Land (Ceiling and
Regulation) Repeal Act, 1909-

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;

(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,
636 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

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

9. Submission is that if notice right
from the start of proceedings or otherwise
is against dead person then it will be
nullity.

10. Submission is that if notice is
issued only under Section 10(5) of the Act
or otherwise it is not properly served on
the land holder then it will be nullity.

11. It is then submitted that even if
notice has been issued under Section
10(6) of the Act but it do not indicate the
name of the witnesses and his parentage
and his address then also it will be
vitiated.

12. It is argued that even if possession
is said to have been taken but there is no
possession memo or even possession memo
is there but if it do not contain complete
detail of witnesses and possession taking
authority then also it is vitiated.

13. Argument is that if possession is
not shown to have been taken by the
competent authority under the Act and in
the light of Circular dated 9th February,
1977 then also it is vitiated.

14. Taking of possession is to be in
accordance with law by an overt act and
positive material is to be there and mere
entry of possession will not be sufficient
to establish taking of actual physical
possession.

15. The observation as made by this
court in case of State of U.P and another
Vs. Nek Singh reported in 2010 (81) 456
is quoted below-

"On examination of the facts on
record, it is crystal clear that the
possession allegedly taken on 23.1.1986
was unlawful for plurality of reasons
which are ? Firstly, the possession
allegedly
taken
on
23.1.1986
was
pursuant to the CA's order dt. 19.12.1985
u/s 10(5) which was addressed to
deceased Dhan Singh and, therefore, it
was nullity and non est factum having no
legal consequence and the possession
taken on the basis was also void."

16. In another decision given in case
of Ram Chandra Vs. State of U.P. and
others reported in 2010 (81) ALR 215
following observations were made-

"There is specific allegation in the writ
petition that proceedings either under Section
10(5) or under Section 10(6) of the Act was
never taken. In the counter affidavit this
specific allegation has not been denied and it
is stated that notice under Section 10(5) of
the Act was issued. From the record it
appears that the notice under Section 10(5) of
the Act was issued against a dead person as
the father of the petitioner had already died
prior to 26th September 1996. Thus, in view
of the decision of this Court rendered in the
case of State of U.P. vs. Hari Ram & others
[2005 (60) ALR 535], all proceedings would
abate.

17. In another decision given in case
of Smt. Shanti Devi Vs. State of U.P.
and others reported in 2010 (81) ALR
85 following observations were made-

"The issue can be examined from
another angle. Learned Standing counsel
does not dispute that there is no other
provision for taking of possession under
the Act except the power provided under
Section 10(5) and 10(6). Admittedly, the
2 All] Ram Singh and Ors. Vs. State of U.P. and others
637
very first step of taking over possession
was taken through a notice under Section
10(5) dated 26.6.1999 which was issued
in the name of the land holder. The fact
that the land holder died on 4.3.1996 has
not been denied. Thus, even the notice
under Section 10(5) was void and would
not give any right or power to the
respondents
to
seek
or
take
over
possession of the disputed land. "

18. In another decision given in case
of Jai Prakash Vs. State of U.P. and
others reported in 2010 (81) ALR 216
following observations were made-

"It is also not denied that the original
land holder died on 26.7.1998 and
therefore even that notice was issued
against a dead person. A Division Bench
of this Court in the case of State of U.P.
Vs. Hari Ram and others [2005 (60)
A.L.R.535] has already held that where
possession is not taken before the Repeal
Act in accordance to law, all proceedings
would abate and land would stand
restored to the land holders. ".

It has been held in the decision given
by this court in case of Mahaveer Vs.
State of U.P. and others reported in
2013(118) RD 306, as given below-

6. A counter affidavit has been filed
by the State in which it is pleaded that
under Section 10 (5) of the Act a notice
was issued on 12.1.1998 for taking
possession.
However,
there
is
no
averment in the counter affidavit as
regards service of notice or that any
proceedings under Section 10 (6) of the
Act was undertaken. Learned standing
counsel has produced the original record
before us, which contains the copy of the
notice dated 12.1.1998 under Section 10
(5) of the Act. However, neither there is
any material to indicate that the said
notice was served upon the petitioner, nor
any
material
to
indicate
that
the
possession was handed over to the State
by the petitioner, or any proceedings
under Section 10 (6) of the Act were
undertaken.

7.Learned counsel for the petitioner
has rightly relied upon the judgment of
Apex Court in Vinayak Kashinath Shilkar
v.
Deputy
Collector
and
Competent
Authority and others, 2012 (2) AWC 2123
(SC) and a Division Bench judgment of this
Court in Chandrma v. State of U.P. and
others, 2011 (5) ADJ 638 (DB). In
Chandrma (supra) this Court has laid down
that there being no proof of taking of
physical possession of the surplus land in
accordance with the procedure prescribed,
the petitioner was entitled for issue of a writ
of mandamus. It is useful to quote
paragraphs 13 to 16 as under: -

"13. In this case as found above from
the pleadings there is no assertion by the
State, that the possession was actually
handed over by petitioner's grand father in
pursuance to the notice under Section 10
(5) of the Act, or that any proceedings
were taken under Section 10 (6) of the
Act for taking over possession. There are
no pleadings of service of the notice
under Section 10 (5) and preparation of
Dakhalnama (possession memo) and the
entries in Form No. C.L.C. III (Register
for land of which possession has been
taken under Section 10 (5) or 10 (6)), in
proof of taking over physical possession
of the surplus land.

14. In absence of any pleadings or
assertion by the State that the possession of
the land was given in response to Section 10
638 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
(5) of the Act, or that proceedings under
Section 10 (6) was taken and any
Dakhalnama
(possession
memo)
was
prepared and entries were made in Form No.
U.L.C. III, we find that the petitioner is still
in possession of the land."

20. The observation as made by this
court in case of Babu Chand Vs. State of
U.P and another reported in 2009 (75)
ALR 873 is quoted below-

"Possession on paper is a symbolic
possession and word "possession' used in
Clause (a) of sub-section (2) of Section 3 of
the Act mean actual physical possession and
not the symbolic possession."

21. The observation as made by the
Apex
court
in
case
of
Vinayak
Kashinath Shilkar Vs. Dy. Collector
and Competent Authority and another
reported in 2012(2) AWC 2123 is
quoted below-

"It is clear from the above provisions
that where the possession of the vacant
land has not been taken over by the State
Government or by any person duly
authorized by the State Government in
this
behalf
or
by
the
Competent
Authority, the proceedings under the Act
would not survive. Mere vesting of the
vacant land with the State Government by
operation
of
law
without
actual
possession is not sufficient for operation
of Section 3(1) (a) of the Act."

22. The observation as made by this
court Smt. Prem Kumari Agarwal Vs.
State of U.P. and others reported in
2012(90) ALR 818 is quoted below- .

"There is nothing on record to show
that the State Government is in actual
physical possession of the surplus land
except alleging that the possession has
been taken. The counter affidavit is silent
as to whether the possession has been
taken actually on the spot or the State
Government is in constructive possession.
The petitioner having been in possession
of the unpartitioned land in question being
a co-sharer, no actual possession could
possibly be taken without there being any
partition. It is not the case of the
respondent that there has been a mutual
partition amongst the co-sharers, as also
with the State Government. At the most it
can be inferred that a constructive
possession was taken by the State
Government. "

23. The observation as made by this
Court in case of Chandrama Vs State of
U.P. and others reported in 2011(5)
ADJ 638 is hereby quoted-

"Learned counsel for the petitioner
has relied upon judgments of the Supreme
Court and the High Courts in Pt. Madan
Swaroop Shrotiya Public Charitable Trust
vs. State of U.P. & ors JT 2000 (3) SC
391; Kailash and another vs. State of UP
and ors 2005 (61) ALR 383; State of UP
vs. Devendra Nath & another Civil Misc.
Writ petition No. 76070 of 2005 decided
on 15.12.2005; Babu Ram and others vs.
State of UP and others 2009 (75) ALR
873; Ram Chandra Pandey vs. State of UP
and others 2010 (82) ALR 136 and M/s
Star Paper Mills Ltd. vs. State of UP and
others 2011 (1) CRC 93. In all these
cases, it was held following leading
judgment in Pt. Madan Swaroop Shrotiya
Public Charitable Trust (supra), that
unless actual physical possession was
taken for which proceedings are provided
under Section 10 (5) and 10 (6) of the
Act, and there is proof of taking over
2 All] Ram Singh and Ors. Vs. State of U.P. and others
639
possession, the proceedings will abate
under Section 3 of the Repeal Act, 1999.

In this case as found above from the
pleadings there is no assertion by the
State, that the possession was actually
handed over by petitioner's grand father in
pursuance to the notice under Section 10
(5) of the Act, or that any proceedings
were taken under Section 10 (6) of the
Act for taking over possession. There are
no pleadings of service of the notice
under Section 10 (5) and preparation of
Dakhalnama (possession memo) and the
entries in Form No. C.L.C. III (Register
for land of which possession has been
taken under Section 10 (5) or 10 (6)), in
proof of taking over physical possession
of the surplus land."

24. The observation as made by this
Court in case of Kailash Vs State of U.P.
and another reported in 2005(61) ALR
873 is hereby quoted-

"In an unreported judgement when
State wanted a clarification in this regard
in Civil Misc. Writ Petition No. 47369 of
2000
(State
of
U.P.
Through
the
Competent Authority and another Vs.
Hari Ram and others) one of our Division
Bench held as follows:

".......an illegal act is not recognized
in law and has to be ignored unless
specifically required under statute to be
reckoned with. Secondly, possession of
surplus land, on notice given under
section 10 (5) of the Act is to be
surrendered by the landowner voluntarily
in pursuance to said notice. If the
landowner does not surrender possession
in pursuance to the aforesaid notice, 'the
Act' contemplates taking possession by
force and coercing the landowner under
section 10 (6) of the Act. If possession is
taken in an extraordinary manner (process
not recognized in law) i.e. without
resorting to the provisions contemplated
under section 10 (5) or Section 10 (6) of
the Act, then possession will be irrelevant
and of no consequence so far as the
applicability of the Repeal Act is
concerned. The Repeal Act shall have no
effect on the Principal Act if possession
of surplus land was not taken as
contemplated in the Principal Act. Repeal
Act, clearly talks possession being taken
under section 10 (5) or 10 (6) of the Act.
It is a statutory obligation on the
Competent Authority or State to take
possession as permitted in law. It is to be
appreciated that in case possession is
purported to be taken under section 10 (6)
of the Act, still Court is required to
examine
whether
'taking
of
such
possession' is valid or invalidated on any
of the considerations in law. If Court finds
that one or more grounds exist which
show that the process of possession,
though claimed under section 10 (5) or 10
(6) of the Act is unlawful or vitiated in
law, then such possession will have no
recognition in law and it will have to be
ignored and treated as of no legal
consequence. The possession envisaged
under section 3 of the Repeal Act is de
facto and not de jure only."

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

"Mere 'mutation' of entry in favour of
State/ other persons in revenue records, is
irrelevant/ inconsequential so far as the
640 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
applicability of section 3 of Repeal Act is
concerned."

25. The observation as made in case
of Ram Chandra Pandey Vs. State of
U.P. reported in 2010(82) ALR, 136 is
hereby quoted-

''From the perusal of provisions
contained under Sub section (5) and (6) of
Section 10 read with Section 3 and 4 of
the Repeal Act 1999 and directions with
regard to the procedure for taking over the
possession, it transpires that after the land
is vested under Sub section (3) of Section
10 of the Principal Act, the Competent
Authority is obliged to issue notice in
writing, ordering any person who may be
in possession of such vacant land to
surrender or deliver the 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 notice and, 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 to be taken to
the concerned State Government or to any
person duly authorised by such State
Government in this behalf, may for that
purpose use such force as may be
necessary. Under the Directions of 1983
(supra ), various forms of notices have
been prescribed. Form U.L.C.-II is meant
for notice under section 10(5) of the
Urban Land (Ceiling and Regulation) Act,
1976. Apart from the format of the notice,
the Competent Authority is required to
forward a copy of the same 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
and
intimation
be
given
to
the
undersigned along with copy of certificate
to verify.

With regard to the taking over the
possession of the surplus land, as we have
already noticed, under the Act there is no
specific provision or mode prescribed for
taking over possession except procedure
as contained under Sub Sections (5) and
(6) of Section 10 of the Parent Act and
direction issued in the year 1983.
Therefore, we take shelter of few judicial
pronouncements where this aspect of the
matter has been dealt with in the cases of
Land Acquisition Act as well as Urban
Land Ceiling Act.

26.

In
Balmokand
Khatri
Educational and Industrial Trust v. State
of Punjab,(1996) 4 SCC 212: ( AIR 1996
SC 1239), it was held that:

"It is difficult to take physical
possession of the land under compulsory
acquisition. The normal mode of taking
possession is drafting the punchnama in
the presence of panchas and taking
possession and giving delivery to the
beneficiaries is the accepted mode of
taking possession of the land. Subsequent
thereto the retention of possession would
tantamount only to be illegal or unlawful
possession.

Same view was reiterated in State of
Tamil Nadu v. Mahalakshmi Ammal, (
1996) 7 SCC 269; (AIR 1996 SC 866)
and Tamil Nadu Housing Board v.
A.Vishwam, (1996)8 SCC 259; (AIR
1996 SC 3377).

In Balwant Narain Bhagde (AIR
1975 SC 1767), possession was meant as
'possession
on
the
spot'
and
not
'symbolical' one.
2 All] Ram Singh and Ors. Vs. State of U.P. and others
641

This view has also been taken by this
Court in the case Chabi Nath Vs State of
U.P., 2005 (59) ALR. 413 and Dr.(Smt.
Raj Kumari Mehrotra Vs State of
U.P.,2009 (1) ADJ 583.

In the background of the facts of this
case and the submissions made by the
learned counsel for the parties as well as
on perusal of the record produced by the
learned Standing Counsel, especially the
document by which possession of the land
is said to have been taken from the grand
father of the petitioner late, Dhani Ram,
we are not satisfied that actual physical
possession of the plots in question was
ever taken by the State Government.
From the record, we find that the memo
of possession prepared in the present case
is nothing but a mere noting of three
officials of the State Government made on
2.4.1992, which is also not on the proper
format and appears to have been prepared
by the State officials in their office, and as
such no authenticity can be attached to the
same. On such memorandum, there is no
signature of the grand father of the
petitioner (late Dhani Ram) or any
independent person to show that actual
physical possession had been delivered to
the State Government. More so, the name
of late Dhani Ram continued in the
revenue record till his death in the year
1995 and thereafter the name of the
petitioner was admittedly recorded in the
Khasra and Khatauni in the year 1996,
which continued so till the passing of the
ex-parte order in 2004, where after also
the land revenue was being accepted from
the petitioner. "

27. The observation as made in case
of Dr. Raj Kumari Mehrotra Vs. State
of U.P. and others reported in 2009(1)
ADJ 583 is hereby quoted-

"From the records that have been
produced before us, we do not find any
transaction between the authority and the
Allahabad Development Authority of
taking possession. There is nothing on
record to indicate, that after the land
holder filed his objection on 30.11.1998
clearly denying taking over possession or
action having taken under Section 10(6)
of the Act 1976, the possession was taken
by the authorities. Apart from this the fact
that the physical possession had not been
taken over, stood fully corroborated by
the admission of the District Magistrate in
the order dated 15.7.2004 Annexure 13 to
the writ petition. The admission of the
District Magistrate in the aforesaid letter
about the possession being retained by the
land holder has not been successfully
denied in the counter affidavit. The only
denial is that the said letter was sent by
the Addl. District Magistrate and not the
competent authority, Urban Ceiling Land
. Such an explanation cannot deny the
factum of the possession being retained
by the tenure holder, inasmuch as the said
letter dated 15.07.2004 admits that
possession was not taken over by the
competent authority in no uncertain terms.
It is the trite law that admission is the best
piece of evidence."

28. With regard to the taking of the
possession over the surplus land, as we
have already noticed, under the Act there
is
no
specific
provision
or
mode
prescribed for taking over possession
except procedure as contained under Sub
Sections (5) and (6) of Section 10 of the
Parent Act and direction issued in the year
1983. Therefore, we take shelter of few
judicial pronouncements where this aspect
of the matter has been dealt with in the
cases of Land Acquisition Act as well as
Urban Land Ceiling Act.
642 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

29. The observation as made in case
of Ravindra Prakash Misra and others
Vs. State of U.P. and others reported in
2007(4) ADJ 426 is hereby quoted-

"it is categorically stated that the
respondents never undertook any exercise at
all in respect of any of the petitioners under
Section 10 (6) of the Act 1976. It is alleged
that the claim of possession made by the
respondents is merely on paper and the
petitioners, at no point of time, were ever
dispossessed from the land in question. In
reply thereto, the counter affidavit on behalf
of the Development Authority simply states
that the same did not require any specific
reply but the counter affidavit filed on behalf
of the State recites that a notice under Section
10 (3) followed by a notice under Section
10(5) of the Act 1976 had been issued and
copies thereof have been filed along with the
said counter affidavit. A perusal of the notice
under Section 10(5) of the Act 1976
demonstrates that the said notice has been
issued in the name of the petitioner no.1
only. The counter affidavit nowhere recites
that notices were served separately on all the
petitioners under Section 10(5) of the Act
1976. There is no averment in the counter
affidavit as to how the said notice was served
on the petitioner no.1. There is also no
averment in the counter affidavit which
would indicate that notices were issued to the
petitioners no. 2 and 3. Apart from this,
paragraph 16 of the writ petition has not been
denied effectively at all. Paragraph 8 of the
counter affidavit of the State simply states
that there is nothing on the record of the said
answering respondent in respect thereof. This
leaves no room for doubt that no proceedings
for taking actual physical possession were
ever initiated under Section 10(6) of the Act
1976.

30. In the absence of any material to
the contrary, the inescapable conclusion is
that the petitioners continued to retain the
actual physical uninterrupted possession
which was also protected during the
pendency of the writ petition under an
interim order dated 14.03.2000.

8.On the aforesaid factual premise,
we find force in the submissions made by
the learned counsel for the petitioners
which is squarely supported by the two
Division Benche decisions of this Court in
the case of Chhabinath Vs. State of U.P.
& Ors., 2005 (2) AWC 1405 followed by
the decision in the case of State of U.P. &
Anr. Vs. Hari Ram & Anr., 2005 ALJ
2402. The following observations in the
case of State of U.P. Vs. Hari Ram
(supra) are quoted below in support of our
conclusions:-

30. In Section 10 (3) of the Act, the
expression used by the Legislature is that
land declared surplus ".......shall be
deemed to have vested absolutely in the
State Government............" Term 'vested'
refers to de jure 'title' and 'interest' in the
surplus
land
irrespective
of
actual
possession.

33. In contradistinction to the above,
in the case of 'surplus land' ' being vested'
in the State under Section 10 (3) of the
Act, the Act further provided steps for
taking possession under Section 10(5) or
10 (6) of the Act.

37. From the above dictionary
meanings it is clear that expression
'vest/vested' may or may not include
'transfer of possession'. It means that
'vested' includes 'physical possession or
not' shall depend upon the overall reading
of statutory provisions.

38. In the light of the above, the
expression 'vesting' used in the Act, 1976
2 All] Ram Singh and Ors. Vs. State of U.P. and others
643
and the Repeal Act has to be read with
reference to and in the context they are used. A
perusal of Section 10 of the Principal Act
(particularly Sections 10(3), 10(5) and 10(6)
and Sections 3 and 4 of the Repeal Act provide
that surplus land when 'deemed to have vested'
does not refer to 'physical possession'. This
becomes conspicuous on reading Sections
10(5) and 10(6) of the Act, which alone talk of
'actual physical possession'.

43. Section 10(1) of the Act
contemplates a 'notification' in the official
Gazette of the concerned State giving
particulars of the vacant land held by a
person in excess of ceiling limit. The
words "such vacant land is to be acquired"
used in the Notification shows the surplus
land will be acquired later. Section 10(3)
of
the
Act
provides
for
another
notification in the official Gazette to
notify the date with effect from which
'such land shall be deemed to have been
acquired and deemed to have absolutely
vested' in the State Government.

44. Expression 'possession' is used
for the first time in Sections 10(5) and
thereafter 10(6) of the Act. Notification
under Section 10 (1) and 10 (3) are not
relevant so far as the question of
applicability of saving clause of Section 3
of the Repeal Act is concerned.

45. Section 10(5) of the Act provides
that Competent Authority may be notice
in writing order any person, who may be
in possession of the land declared surplus
to surrender or deliver possession thereof
to the State Government or to any person
duly authorized in this behalf within 30
days of the service of notice. Section 10
(5) makes it clear and shows that ''vesting'
is something different and distinct from
''possession'.

46. Section 10 (6) of the Act takes care
of a stage when a person, in possession of
surplus land fails to surrender/deliver
possession voluntarily or receipt of notice
under Section 10(5) of the Act and, in that
contingency authorizes/empowers competent
authority to take physical/de facto possession
of such vacant lands so declared surplus land.

47. Section 3 of the Repeal Act
amply reflect the purpose and intention
the Legislature, namely where a land
owner remains in physical possession,
then irrespective of its being 'declaring
surplus, and/or entry being made in
favour of State in Revenue Records as a
consequence of vesting and even if
compensation is paid or received, in law,
surplus land gets exempted and ought to
remain with original landowner. The
relevant criterion is whether physical
possession of the land declared surplus
was ever taken by the State Government.
If answer is in 'negative', the landowner
must not suffer and have the benefit of
Repeal
Act
because,
due
to-
the
inaction/failure on the part of State to take
physical possession before coming into
force the Repeal Act, in negation of 'Aim
and object' and purpose of the Act.

48. Section 3 (2) (a) and (b) of
Repeal Act make clear that even receipt
of compensation will not disentitle one to
claim benefit of the Repeal Act if
compensation is refunded, provided a
person continues to be in physical of the
land declared surplus.

49. The above interpretation of
Section 3 of the Repeal Act; further finds
support from Section 11 of the Act, which
refers to 'deemed acquisition' under
Section 10 (3) of the Act. It has no
reference to section 10 (5) of 10 (6) of the
644 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Act. It shows that notional compensation
(as
against
market
value)
becomes
payable, as and when land is 'deemed
vested' in the State Government even
without resumption of or taking physical
possession of surplus land. For claiming
compensation or taking over of 'physical
possession' is not the condition precedent
under the Act. Section 11 (1) of the Act
affirms the above position and explains
the purpose of incorporation of Section 3
(2), Clauses (a) and (b) of Repeal Act.
Section 3 (2) (a) of Repeal Act- qualifies
that 'surplus land' is deemed vested under
Section 10 (3) of Principal Act but
possession of which has not been taken. It
shows that condition precedent by taking
of physical possession is not the 'deemed
vesting' or mutation in Revenue Records.

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

51. Similar conclusion is irresistible
if we read Section 4 of the Repeal Act
that again talks of possession of which
has been taken over by the State. Answer
to the question - 'when possession is taken
over can be found out from the entries
made in due course- at relevant time in
ULC Forms I, II and III.

31. It is clear that mere vesting of
'land declared surplus' under the Act,
without resuming 'de facto possession', is
of no consequence and the landholder
shall be entitled to the benefit of Repeal
Act.

32. There is no even an iota of
material to show that steps were taken by
the petitioners to take physical/de facto
possession of the surplus land on spot.

33. Firstly, an illegal act is not
recognized in law and has to be ignored
unless specifically required under statute
to be reckoned with. Secondly, possession
of surplus land, on notice given under
Section 10(5) of the Act is to be
surrendered by the landowner voluntarily
in pursuance to said notice. If the
landowner does not surrender possession
in pursuance to the aforesaid notice, ''the
Act' contemplates taking possession by
force and coercing the landowner under
Section 10(6) of the Act. If possession is
taken in an extraordinary manner (process
not recognized in law) i.e. without
resorting to the provisions contemplated
under Section 10(5) or Section 10(6) of
the Act, then possession will be irrelevant
and of no consequence so far as the
applicability of the Repeal Act is
concerned. The repeal Act shall have no
effect on the Principal Act if possession
of surplus land was not taken as
contemplated in the Principal Act. Repeal
Act, clearly talks possession being taken
under Section 10(5) or 10(6) of the Act. It
is a statutory obligation on the Competent
Authority or State to take possession as
permitted in law. It is to be appreciated
that in case possession is purported to be
taken under Section 10(6) of the Act, still
Court is required to examine whether
''taking of such possession' is valid or
invalidated on any of the considerations in
law.