# Shahzad & Anr v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1824
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-04-17
- **Case number:** Writ C No. 42861 of 2014
- **Bench:** Pradeep Kumar Singh Baghel, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shahzad-anr-v-state-of-u-p-ors-44680
- **Pages:** 17

## Headnote

A. Urban Land (Ceiling and Regulation) Act,
1976 - No material to show the voluntary or
forceful possession of the vacant land u/s
10(5) and 10 (6) - Petitioner also did not
receive compensation - State not authorised
to handover the land to the development
authority - proceeding initiated under Act,
1976 stood lapsed.

Held:- In the present case, we have found
that the petitioners are still in possession and
the State has not taken possession in
accordance with law, hence, we are of the
view that the State had no authority to
handover the possession to the Saharanpur
Development Authority. The Development
Authority has not brought on the record any
document or evidence that they have raised
any construction over the surplus land of the
petitioners which was transferred by the State
to Development Authority. Thus, in absence of
any averment or the documents to the said
fact, we have to hold that petitioners are still
in possession. (Para 39)

Writ Petition allowed (E-9)
2 All. Shahzad & Anr. Vs State of U.P. & Ors.
1825
List of Cases Cited: -

## Text

_Characters 0–39,993 of 54,951. This is a partial read: ask again with offset=39993 for what follows._

1824 INDIAN LAW REPORTS ALLAHABAD SERIES
immediately before the commencement of
this Code, whether in appeal, revision,
review or otherwise, shall be decided in
accordance with the provisions of the
appropriate law, which would have been
applicable to them had this Code not been
passed.

(2) ................"

17. The suit filed by the petitioner was
one under Section 229B of the U.P.
Zamindari Abolition and Land Reforms
Act. Therefore, even the subsequent
proceedings arising therefrom would be
governed
by
the
provision
of
the
U.P.Zamindari Abolition and Land Reforms
Act despite its repeal and enforcement of
the U.P. Revenue Code, 2006.

18. Sub-section 3 of Section 331 of
the U.P. Zamindari Abolition and Land
Reforms Act provides for an appeal from
amongst others, also against an order of
the nature, mentioned in Order 43 Rule 1
C.P.C. Therefore, the petitioner has a
statutory alternative remedy of an appeal
against the order impugned and for this
reason alone, the instant writ petition is
not liable to be entertained.

19. Even if for the sake of argument,
it is accepted that an appeal will not lie
against the order impugned, the petitioner
definitely has the remedy of a revision
before the Board of Revenue under
Section 339 of the U.P. Zamindari
Abolition and Land Reforms Act.

20. The statutory alternative remedy
available to the petitioner has not been
availed.

21. Therefore, this writ petition is
dismissed on the ground of availability of
a statutory alternative remedy.
----------
(2019)10ILR A 1824

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.04.2019

BEFORE

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

Writ C No. 42861 of 2014

Shahzad & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shesh Kumar, Sri Sunil Dubey.

Counsel for the Respondents:
C.S.C., Sri P.K. Singh, Sri Pradeep Kumar Singh.

A. Urban Land (Ceiling and Regulation) Act,
1976 - No material to show the voluntary or
forceful possession of the vacant land u/s
10(5) and 10 (6) - Petitioner also did not
receive compensation - State not authorised
to handover the land to the development
authority - proceeding initiated under Act,
1976 stood lapsed.

Held:- In the present case, we have found
that the petitioners are still in possession and
the State has not taken possession in
accordance with law, hence, we are of the
view that the State had no authority to
handover the possession to the Saharanpur
Development Authority. The Development
Authority has not brought on the record any
document or evidence that they have raised
any construction over the surplus land of the
petitioners which was transferred by the State
to Development Authority. Thus, in absence of
any averment or the documents to the said
fact, we have to hold that petitioners are still
in possession. (Para 39)

Writ Petition allowed (E-9)
2 All. Shahzad & Anr. Vs State of U.P. & Ors.
1825
List of Cases Cited: -

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

2.SLP (C) No. 16582 of (2014) decided with
SLP (C) No. 38922 of (2013), St. of U.P. & anr.
Vs Vinod Kumar Tripathi & ors.

3. Ram Chandra Pandey Vs St. of U.P., (2010)
(82) AIR 136

4. St. of U.P. Thru Secy Avas Avam Shahri
Niyojan Vs Ruknuddin & ors. in Writ C
No.54830 of (2011)

5. Lalji Vs St. of U.P. & 2 ors., (2018) (5) ADJ 541

6. St. of U.P. & anr. Vs Nek Singh, (2010) (81)
AllLR 456.

7. St. of Assam Vs Bhaskar Jyoti Sharma & ors.
(2015) (5) SCC 321

8. Shiv Ram Singh Vs St. of U.P. & ors. (2015)
(5) AWC 4918.

9. Gopi Ram Vs St. of U.P. & ors.

10. Gajanan Kamlya Patil Vs Addl. Collector &
Comp. Auth. & ors, JT (2014) (3) SC 211

11. Rajendra Kumar Vs Kalyan, JT (2000) (8)
SC 359

12. Ratiram Vs St. of U.P & ors., (2018) (4)
ALB 338

13. St. of U.P. & anr. Vs Nek Singh, (2010)
LawSuit(All) 3581 : (2010) (81) AllLR 456

14. St. of U.P. Vs Doon Udhyog (P) Ltd,
(1999) (4) AWC 3324

15. St. of U.P. Vs Hart Ram, (2005) (60) AllLR
535

 (Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J. & Hon'ble Rohit Ranjan
Agarwal, J.)

1. Petitioners have preferred this
writ petition under Article 226 of the
Constitution of India for issuance of writ
of certiorari to quash the order dated
5.5.2014
passed
by
the
Collector,
Saharanpur
whereby
the
petitioners'
representation has been rejected holding
that in revenue record, the name of the
Government has been mutated and his
land has been legally declared surplus and
possession has been taken under the
provisions of Urban Land (Ceiling &
Regulation) Act, 1976 (for short, the 'Act,
1976').

2. A brief reference to the factual
aspects would suffice.

3. The petitioners claim that they are
the owners of the Khasra Nos. 431, 33,
312, 490, 504, 505, 507/1 and 421/1
situated at Village Dabki Junardar, Tehsil
and District- Saharanpur. The proceedings
were initiated under the provisions of the
Act, 1976 to declare their surplus land.
The competent authority vide order dated
13.12.1978 declared petitioners' land
admeasuring 11293.607 sq.mt., surplus. It
is stated that said order was passed exparte and it was not implemented as he is
still in possession. The petitioners' father
came to know about said order on
27.2.2002 when he found that name of
State has been recorded in the revenue
papers (khatauni). Against the order dated
13.12.1978, he filed an appeal. In the
meantime Urban Land (Ceiling and
Regulation) Repeal Act, 1999 (for short,
the 'Act 15 of 1999') came in to force and
the Act 33 of 1976 Act was repealed.
Under Section 4 of the Act, 15 of 1999,
all legal proceedings were abated subject
to Section 3 of the Act. Petitioners' claim
that since they are continued to be in
possession
hence,
in
this
case,
1826 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings stood abated in terms of
Section 3(2)(a) of the Act. It is stated that
they have not received any compensation.
It is also stated that when respondents
started interfering in possession of the
petitioners, they preferred a Writ Petition
being Civil Misc. Writ Petition No.30434
of 2002. During the pendency of the said
writ petition, father of the petitioners
unfortunately died on 13.8.2003. The
aforesaid
writ
petition
was
finally
disposed of on 23.3.2012 leaving it open
to the petitioners to make a representation
before the Collector, Saharanpur for
redressal of their grievance. A copy of the
judgment of this Court is on record as
Annexure 3 to the writ petition.

4. The petitioners, in compliance
thereof
submitted
a
detailed
representation
to
the
Collector,
Saharanpur on 4.4.2012, a copy of the
said representation is on record as
Annexure 4 to the writ petition. It appears
that an enquiry was initiated in respect of
the status of the land and Tehsildar,
Saharanpur submitted a report dated
20.4.2012 addressed to the Sub Divisional
Magistrate, Saharanpur, (new number)
wherein, he submitted that on Khasra
No.35 Area 0.7030 hectares. On the spot,
the wheat crop was found on the said land
and one sikmi kastkar (share cropper) of
the petitioner is cultivating and his crop
was found in the land in question.

5. From the record, it appears that in
the said enquiry, the revenue authorities
have got the statement of the sikmi
kastkar (share cropper). In the said
enquiry, statements of three other persons
namely Mohd. Imran, Shahzad and Bindu
was recorded, their statement is part of the
record. The S.D.O also in his report dated
28.4.2012 has submitted that petitioners
are in physical possession of the land. It
appears that Collector asked the S.D.O to
submit a fresh report. In the subsequent
report dated 25.5.2012, the same S.D.O.
submitted that in the records Saharanpur
Development
Authority's
name
is
recorded, but petitioners are in actual
possession. On the basis of the above
report, the Collector by impugned order
has rejected the claim of the petitioners.

6. A counter affidavit has been filed
by the respondent nos.1 & 2. The stand
taken by the State authorities is that
statement under Section 6(1) of the Act,
1976
was
submitted
by
Yaseen,
petitioners' father on 14.8.1976, which
was registered as Ceiling Case No.3771
of 1976. After due enquiry, a draft
statement was prepared and issued to
petitioners' father on 30.8.1978 whereby
12204.68 sqr.mtr of land in Khasra Plot
Nos.431,311,315, 490, 504, 505, 506,
507/1,551 and 621/2 was proposed to be
surplus.

7. It is stated that since no objection
was filed, therefore, on the basis of the
aforesaid draft statement, the proposed
area was declared as surplus by an order
dated 13.12.1978 by the Prescribed
Authority. The aforesaid order is said to
be served upon the petitioners, on
14.6.1979 pursuant to which a notification
under Section 10(1) of the Act, 1976 was
published in the official gazette on
27.10.1979 and notification under Section
10(3) was published on 20.2.1990. It is
further averred that a notice under Section
10(5) of the Act was also issued in the
name of Yaseen, the original tenure
holder by affixing the same on door of the
house of the petitioner on 5.7.1993.
Thereafter, the possession of the plots in
dispute was taken over by the authorized
2 All. Shahzad & Anr. Vs State of U.P. & Ors.
1827
officials of the Urban Ceiling Department,
and the possession was handed over to the
Saharanpur Development Authority by
order of the District Magistrate. A copy of
the possession memo has also been
brought on record as Annexure 4 to the
counter affidavit.

8. The Development authority,
respondent no.3 has also filed a counter
affidavit wherein the same facts have
been
reiterated.
In
regard
to
the
possession, it is stated in Para 7 of the
counter affidavit that possession of the
declared surplus land was obtained on
behalf of the State Government on
27.7.1993, a copy of the possession memo
has been brought on record as Annexure
No.C.A. 4 & C.A. 5 of the affidavit and
on the same day viz. on 27.7.1993, the
possession has been handed over to the
Saharanpur Development Authority. It is
stated in the counter affidavit that the
alleged cultivatory possession of the agent
of the petitioners over the disputed
surplus land is illegal and unauthorized,
as such benefits of Repeal Act, 1999 are
not attracted in favour of the petitioners.

9. We have heard Sri Shesh Kumar,
learned Counsel for the petitioner, Sri
D.K. Tiwari & Sri Mohan Srivastava,
learned Standing Counsel and Sri P.K.
Singh, learned Counsel for Saharanpur
Development Authority.

10. Sri Shesh Kumar, learend
Counsel for the petitioners submits that no
notice under Section 10(5) was issued to
the
petitioners
and
they
have not
voluntarily surrendered the possession.
Petitioners are still in physical cultivatory
possession over the land and they have
submitted that from the report of the
Tehsildar and the S.D.M., it is evident
that they have found that petitioners are in
the cultivatory possession of the land.

11. Sri Shesh Kumar, learned
Counsel for the petitioner has drawn our
attention to the statement of sikmi
khastkar (share cropper) of the petitioners
recorded by the Revenue Authorities, who
had stated that they have sown wheat crop
on behalf of the petitioners. Both the
authorities
in
their
report
have
categorically recorded that petitioners are
still in possession. It is further stated that
in the impugned order, the District
Magistrate's finding in regard to the
possession of petitioners over the land is
perverse. He has completely ignored those
reports which are on the record.

12. He further submitted that in view
of Section 3 & 4 of the Repeal Act, 1999,
the proceedings against the petitioner
stood lapsed as on the date of the
enforcement of the amended Act, the
petitioner was in the physical possession
over the land in question. He has placed
reliance upon the judgment of Apex Court
in case of State of Uttar Pradesh v. Hari
Ram, (2013) 4 SCC 280, Special Leave
Petition (C) No. 16582 of 2014 decided
with Special Leave Petition (C) No.
38922 of 2013, State of U.P. and another
v. Vinod Kumar Tripathi and others, on
19th January, 2016, Ram Chandra
Pandey Vs. State of U.P., 2010 (82) AIR
136, State of U.P. Thru Secy Avas Avam
Shahri Niyojan v. Ruknuddin and others
in Writ C No.54830 of 2011, Lalji Vs.
State of U.P. & 2 Others, 2018 (5) ADJ
541, State of U.P. and another Vs. Nek
Singh, 2010 (81) AllLR 456.

13. Learned Standing Counsel
submits that the possession has been taken
by the representative of the Collector on
1828 INDIAN LAW REPORTS ALLAHABAD SERIES
27.7.1993, a copy of the possession memo
is on record as Annexure 4 to the counter
affidavit filed by the respondent nos.1 &
2. He further submits that the land has
been handed over to the Saharanpur
Development Authority on the same day,
which is in the possession of the land. The
learned Standing Counsel has placed
reliance on a judgment of the Apex Court
in the case of State of Assam Vs. Bhaskar
Jyoti Sharma & Others 2015 (5) SCC
321 that has been followed by a Division
Bench of this Court in the case of Shiv
Ram Singh Vs. State of U.P. & Others
2015 (5) AWC 4918.

14. Sri P.K. Singh, learned Counsel
for
the
Saharanpur
Development
Authority has adopted the submission of
learned Standing Counsel.

15. We have heard learned Counsel
for the parties and perused the material on
record.

16.

Before
adverting
to
the
submission of learned Counsel for the
parties, it would be advantageous to
consider the some of the provisions.
Chapter III of the Act, 1976 deals with the
ceiling of vacant land. Section 6 provides
that every person holding vacant land in
excess of the ceiling limit shall file a
statement before the competent authority
giving the detail about the location,
extent, value and such other particulars as
may
be
prescribed
under
the
Act
regarding all vacant land held by him.
Section 8 provides that a draft statement
shall be prepared regarding vacant land, it
shall be prepared on the basis of the
statement submitted by the person and on
the basis of enquiry which the competent
authority made deems it fit. Sub-section 3
of Section 8 provides that the draft
statement prepared by the competent
authority shall be served on the person
concerned calling upon him to file any
objection, if any, within 30 days. After
considering
his
objection,
a
final
statement is preferred by the competent
authority, and if, he has excess of the
ceiling limit, the land is declared surplus
and a notification is published under subsection 1 of Section 10 of the Act. The
said notification is published for the
information of the general public in the
Financial Gazette. The objection is
indicated from all the interested persons
in such vacant land. Sub-section 2 of
Section 10 provides that after considering
the objection filed by the interested
person, the competent authority shall pass
an order regarding the vacant land. Under
Sub-section 3 of Section 10, a notification
published in the Official Gazette and the
excess land declared be deemed to have
been acquired by the State Government
and it shall be deemed to have been
vested in the State Government free from
all encumbrances.

17. Sub-section 5 of Section 10 provides
that after the land is vested in the State
Government, a notice in writing is issued to a
person who may be in possession of it to
surrender or deliver possession to the State
Government or to any person duly authorized
by the State Government within thirty days of
the service of the notice.

18. Sub-section 6 of Section 10 lays
down that if after service of notice under
Sub-section 5 of Section 10, a person
refuses or fails to comply the order, the
competent authority may take possession
of the vacant land. For the said purpose,
he can use force also as may be necessary.
Sub-section 5 and Sub-section 6 of
Section 10 read as under :-
2 All. Shahzad & Anr. Vs State of U.P. & Ors.
1829

"(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 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."

19. In the meantime, the Parliament
enacted ''The Urban Land (Ceiling and
Regulation Repeal Act, 1999 (for short
Act 15 of 1999)'. Section 4 of the Act,
1999 provides regarding the abatement of
legal proceedings under the Principal Act
pending
immediately
before
the
commencement of Act, 15 of 1999 (18th
March, 1999). Section 3 and Section 4 of
the Act read as under :-

"3. Saving.--
(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
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."

20. The petitioners case is that the
entire proceedings under the Act, 33 of
1976 stood abated in view of Section 3(2)
as he is still in possession. The petitioners'
claim that the possession was never taken
by the State authority and they are still in
physical possession of the land and they
are cultivating their agricultural holding
till date. When the State authorities had
1830 INDIAN LAW REPORTS ALLAHABAD SERIES
earlier threatened to dispossess them, they
preferred a Writ Petition No.30434 of
2002 which was disposed of by this Court
on 23.3.2012 by giving them liberty to
file a representation before the the District
Magistrate, Saharanpur who shall decide
it by a speaking order. In compliance
thereof, they submitted a representation
before the District Magistrate. He also
filed some documents to indicate his
physical possession over the excess land
which has been declared surplus.

21. The perusal of the record shows
that the District Magistrate, Saharanpur
called a report from the concerned review
authority
regarding
the
physical
possession of the land. The Tehsildar
visited the land in question and found that
crop of the wheet was sown. On
19.4.2012, he recorded a statement of
Tahir Hasan, Imran, Shahjad and Bindu.
All the aforesaid persons had made a
statement that the land in question is
owned by the petitioner no.1 and he has
given the land to them on ''batai' and they
are cultivating the land on behalf of the
petitioner and getting the share in the
crop. A copy of their statement is on
record.

22. The Tehsildar in his report dated
21.4.2012, addressed to the S.D.M,
Saharanpur has clearly stated that the plot
no.35/0.703 hectare is recorded in the
name of the petitioner no.1 and 2, son of
Yaseen. He found that in the disputed
land, there was a wheat crops. On the
basis of the said report, the S.D.M.,
Saharapur submitted a report to the
District
Magistrate,
Saharanpur
on
28.4.2012 wherein he has recorded that
earlier Khasra No.431, 311, 312, 490,
504, 505, 507, 551, 421/2 and 421/2, after
the
consideration
proceedings,
their
number have been changed by the order
of the C.O. dated 16.3.1979 and the new
number is 35 which is also recorded in
CH Form-41. The said report is Annexure
no.7 to the writ petition. It appears that
the District Magistrate, Saharanpur again
asked the S.D.M to submit a fresh report.
In his report dated 24.5.2012, the S.D.M.,
Saharahpur
has
reiterated
that
the
petitioners are in physical possession,
however, since the land has been vested in
the State Government, hence on the basis
of the documents, it appears that the
Saharanpur Development Authority is in
possession however, physical possession
is still with the petitioners, which is
illegal.

23. On the basis of these reports, the
District
Magistrate,
Saharapur
has
rejected
the
representation
of
the
petitioners. We find that the findings
recorded by the District Magistrate is
perverse. The statement recorded by
Tehsildar and his report as well as the first
report of the S.D.M., Saharanpur dated
28.4.2012
clearly
demonstrates
the
physical possession of the petitioners. The
subsequent report dated 24.5.2012, the
same S.D.M., Saharanpur has recorded
that the physical possession of the
petitioner are illegal and on the basis of
the
vesting
of
the
land
in
State
Government,
the
Saharanpur
Development Authority shall be deemed
to be in possession. This Court in its order
dated 23.4.2012 had directed the District
Magistrate, Saharanpur to consider the
issue of the physical possession and the
Court has also recorded the submission of
the petitioners that no compensation was
paid to them.

24. From the perusal of the order of
the District Magistrate, it is evident that
2 All. Shahzad & Anr. Vs State of U.P. & Ors.
1831
he
has
assumed
that
Saharanpur
Development
Authority
has
taken
possession merely on the ground that a
notification under Section 10(1) and 10(3)
was issued, and, thus the land stood
vested
in
the
State
Government.
Petitioners, in the writ petition, has clearly
stated that they are still in possession of
the land. The possession memo was on
record.

25. From the perusal of the record, it
appears that pursuant to the notice issued
to the petitioner under Section 10(5), they
have not voluntarily surrendered the
possession. There is no document on
record to indicate that the petitioners had
voluntarily surrendered possession to the
State
Government.
In
the
Counter
affidavit, a general and vague statement
has been made regarding taking over the
possession. In the affidavit, no date has
been mentioned when the possession
under Section 10(5) was taken. In the
possession memo, there is no signature to
the petitioners or their father. In case,
petitioners have not given voluntarily
possession, then a notice under Subsection (6) of Section 10 should have
been issued. The State Government has
not taken stand that any notice was issued
under Section 10(6). The petitioners in
paragraph no.24 of the writ petition have
averred that notice under Section 10(5) or
10(6) was not issued to them and the said
statement of the fact has not been
specifically denied. The relevant part of
Para 19 is extracted :-

"19.
That
the
contents
of
paragraph No.24 of the writ petition are
not admitted as stated, hence denied. The
suitable reply has already been given in
the preceding paragraphs of this counter
affidavit."

26. A perusal of the said reply does
not show that pursuant to the notice
issued under Section 10(5), petitioners
had given voluntarily possession to the
State Government. It is not the stand of
the State that when the petitioners fail to
give the possession, the State has taken it
forcibly. In fact no notice under Section
10(6)
was
issued
to
take
forcible
possession. There is no material on record
to indicate that the forcibly possession
was taken from the petitioners and on the
same day, it is alleged that the possession
was handed over to the Saharanpur
Development Authority.

27. From the material on record, we
are not satisfied that the possession of the
vacant land was taken from the petitioners
in terms of the procedure of Section 10(5)
and
10(6).
Petitioners
in
their
representation before the Collector has
clearly stated that they or their father have
not received any compensation for their
land and they are also requested that spot
inspection be made. The expectation of
the petitioners are that they have not
received any compensation has not been
dealt with by the District Magistrate in his
impugned order.

28. The question arises that on the
date of enforcement of the Repeal Act,
1999, whether the petitioners were in
physical possession or not. The petitioners
have denied the fact regarding the
voluntarily
surrender
to
the
State
Government under Section 10(6), in fact
during the enquiry when the Tehsildar has
made the visit of the land, it was found
that the petitioners were in cultivatory
possession over the land through his sikmi
khastkar (share cropper). The statement of
all the sikmi khastkar (share cropper)
have been recorded by the Revenue
1832 INDIAN LAW REPORTS ALLAHABAD SERIES
Authorities and is part of the record. We
find that the State Government has
completely ignored those facts which
goes to prove beyond doubt regarding the
possession of the land over the land in
dispute.

29. It is pertinent to mention that the
State Government in exercise of its power
conferred upon Section 35 of the Act,
1976 has framed " 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 said
directions reads as under :-

"35.
Power
of
State
Government
to
issue
orders
and
directions to the competent authority.--
The State Government may issue such
orders and directions of a general
character as it may consider necessary in
respect of any matter relating to the
powers and duties of the competent
authority and thereupon the competent
authority shall give effect to such orders
and directions."

1. Short title, application and
Commencement -These directions may be
called the Uttar Pradesh Urban Land
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 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-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 u/s 10-(3) and 10(5)

1
2
3
4
5
6
7
8

Seria
l No.
of
Regi
ster
of
Rece
ipt
Seria
l
No.o
f
Regi
ster
of
Taki
ng
Poss
essio
n

Case
num
ber

Date
of
Notif
icatio
n u/s
10(3)
Land
to be
acqui
re-d
villa
ge
Moh
ali
Date
of
takin
g
over
posse
ssion
Rem
arks
Signa
ture
of
comp
etent
Autho
rity
2 All. Shahzad & Anr. Vs State of U.P. & Ors.
1833

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...........................To
......................................

In exercise of the powers vested
un/s 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 u/s 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 subsection (6) of Section 10 of the Act will
follow.

Description of Vacant Land

Location
Khasra
number
identificatio
n
Area
Remarks
1
2
3
4

Competent Authority

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

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

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 copy of certificate to verify.

Competent Authority ................

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

30. We further find from the
material on record that there is no
document to indicate that how the
possession of the petitioners has been
handed over by the State Government to
Saharanpur Development Authority. In
the counter affidavit of Saharanpur
Development Authority, it is mentioned
that the possession has been taken from
the petitioner on 27.7.1993 and on the
same day, State Government has handed
over
possession
to
Saharanpur
Development Authority. The relevant part
of the Paragraph 9 is extracted below :-

"9. That it is noteworthy that the
aforesaid surplus land was subsequently
transferred to Saharanpur Development
Authority on 27.7.1993 for utilization in
its development scheme. Accordingly
much prior to the enforcement of Urban
Land Ceiling Repeal Act, 1999 the said
surplus land has under the actual physical
possession of the answering respondent
S.D.A."

31. Supreme Court in case of Hari
Ram (supra) had occasion to deal with
this, some issue regarding the vesting of
the land in the State, the Apex Court has
held that land shall vest in the State
Government only when the procedures
laid down under the law has been
followed. The Court has interpreted the
word "vested" which find place in the
1834 INDIAN LAW REPORTS ALLAHABAD SERIES
statutory provision under Sub-section 5 &
6 of Section 10, the Court has observed
that for taking possession the de jure
possession is not sufficient unless there is
a de facto possession also. The relevant
part of the observation of the Apex Court
are herein under :-

"27. 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
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

28. 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 UP and Others
(1977) 1 SCC 155, while interpreting
Section
117(1)
of
U.P.
Zamindari
Abolition and Land Reform 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. Kalyan
(dead) by Lrs. (2000) 8 SCC 99 held as
follows:

"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. Charlton. 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."

29. 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.

30. 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
2 All. Shahzad & Anr. Vs State of U.P. & Ors.
1835
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

31. 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.

32. If de facto possession has
already
passed
on
to
the
State
Government
by
the
two
deeming
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."

32. The judgment of the Apex Court
in the case of Hari Ram (supra) has been
followed by the Division Bench of this
Court in case of Gopi Ram Vs. State Of
U.P. And Others, wherein same issue
came up for consideration before the
Division Bench. The Division Bench
considering the fact in pursuance of 1976,
Rules and held that State Government has
delegated its power to Collector to take
possession. Since the State has delegated
its power to the Collector, therefore, the
Collector has no authority to delegate its
power upon any of revenue authority. The
relevant part of the judgment reads as
under :-

"From the facts, discussions,
pleadings of the parties and from perusal
of the original record, we are satisfied
that actual physical possession of the land
was never taken by the State Government.
There is no material existing on the
original record to demonstrate that
possession was taken over by the State
Government
or
any
person
duly
authorised by it or by the competent
authority. Once the State Government
itself never came in possession over the
land in dispute there does not arise any
question of transferring possession of the
said land in favour of the Agra
Development Authority.

The State having failed to
demonstrate
that
actual
physical
possession of the land declared surplus
was taken over at any point of time prior
to 18.3.1999 when the Repeal Act came
1836 INDIAN LAW REPORTS ALLAHABAD SERIES
into force in the State of Uttar Pradesh,
subsequent alleged transfer in favour of
the Agra Development Authority is a mere
paper transaction inasmuch as the State
Government when itself did not obtain
actual physical possession could not have
transferred the same.

In the facts and circumstances,
the petitioner is entitled to get benefit of
the Repeal Act, 1999 and the writ petition
deserves to be allowed.

Accordingly,
writ
petition
succeeds and stands allowed. "

33. The issue with regard to peaceful
possession and forceful possession in
terms of sub-sections (5) and (6) of
Section 10 of the Act, 1976 has been
elaborately considered again by the
Supreme Court in the case of Gajanan
Kamlya Patil v. Addl. Collector & Comp.
Auth. & ors, JT 2014 (3) SC 211. The
Supreme Court followed its earlier
judgment in the Rajendra Kumar v.
Kalyan, JT 2000 (8) SC 359. The relevant
part of the judgment of Gajanan Kamlya
Patil (supra) 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.