# Smt. Shanti Devi v. State of U.P. and others

- **Citation:** (2010) 1 ILRA 63
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-01-18
- **Case number:** Civil Misc. Writ Petition No. 64470 of 2009
- **Bench:** Devendra Pratap Singh, Mrs. Jayashree Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shanti-devi-v-state-of-u-p-and-others-41520
- **Pages:** 4

## Headnote

Urban Land (Ceiling & Regulation) Act-
1976-Section 10 (3)-Proceeding against
dead
person-
taking
possessiondeclaration of surplus land about 1471
square meters notice neither served
upon erstwhile owner-nor possession
taken under U.P. Urban Land Ceiling
(taking
of
possession
payment
of
amount and allied matters) direction
1983 by producing form no. 4 LC-11 in
column 9-notice issued against dead
person-entire proceeding stood abateddirection not to interfere with possession
of petitioner given.

Held: Para-7 & 8

However,
learned
Standing
counsel
contends that the possession of the
vacant land after it vested in the State
under Section 10 (3) was taken over by
the State. Apart from a bald allegation in
the
counter
affidavit
there
is
no
documentary proof to prove the factum
of possession. In fact even the date on
which the possession was allegedly
taken by this State is not disclosed in the
counter affidavit. The State Government
itself in exercise of powers under Section
35 of the Act has issued directions
known as U.P. Urban Land Ceiling
(Taking
of
Possession,
Payment
of
Amount and Allied Matters) Direction
1983 for the purposes of taking over
possession. These directions provide that
where possession of the excess vacant
land is taken either Sub Section 5 or Sub
Section 6 of Section 10, entry would
have to be made in the register in Form
No. ULC-III and also in column no. 9 of
the Form No. ULC-I. It further mandates
the Competent Authority to put his
signatures in the column no. 2 of Form
No. ULC-I and column no. 10 in Form No.
ULC-III in token of verification of the
entries of possession. Neither there is
any allegation in the counter affidavit
nor copies of any of the forms have been
annexed to show that in fact possession
was taken.

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
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.
Case law discussed:
[2005 (60) ALR 535].

## Text

1 All] Smt. Shanti Devi V. State of U.P. and others
63
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2010

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

Civil Misc. Writ Petition No. 64470 of 2009

Smt. Shanti Devi

....Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
Sri Raj Karan Yadav

Counsel for the Respondents:
C.S.C.

Urban Land (Ceiling & Regulation) Act-
1976-Section 10 (3)-Proceeding against
dead
person-
taking
possessiondeclaration of surplus land about 1471
square meters notice neither served
upon erstwhile owner-nor possession
taken under U.P. Urban Land Ceiling
(taking
of
possession
payment
of
amount and allied matters) direction
1983 by producing form no. 4 LC-11 in
column 9-notice issued against dead
person-entire proceeding stood abateddirection not to interfere with possession
of petitioner given.

Held: Para-7 & 8

However,
learned
Standing
counsel
contends that the possession of the
vacant land after it vested in the State
under Section 10 (3) was taken over by
the State. Apart from a bald allegation in
the
counter
affidavit
there
is
no
documentary proof to prove the factum
of possession. In fact even the date on
which the possession was allegedly
taken by this State is not disclosed in the
counter affidavit. The State Government
itself in exercise of powers under Section
35 of the Act has issued directions
known as U.P. Urban Land Ceiling
(Taking
of
Possession,
Payment
of
Amount and Allied Matters) Direction
1983 for the purposes of taking over
possession. These directions provide that
where possession of the excess vacant
land is taken either Sub Section 5 or Sub
Section 6 of Section 10, entry would
have to be made in the register in Form
No. ULC-III and also in column no. 9 of
the Form No. ULC-I. It further mandates
the Competent Authority to put his
signatures in the column no. 2 of Form
No. ULC-I and column no. 10 in Form No.
ULC-III in token of verification of the
entries of possession. Neither there is
any allegation in the counter affidavit
nor copies of any of the forms have been
annexed to show that in fact possession
was taken.

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
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.
Case law discussed:
[2005 (60) ALR 535].

(Delivered by Hon'ble D.P. Singh, J.)

1. Heard learned counsel for the
parties.

2. The relief claimed in this petition
is for a mandate to the respondents not to
take actual physical possession of the
disputed land treating as having been
declared surplus and further restrain them
from interfering with their possession and
64 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
for a declaration that proceedings under
the Urban Land (Ceiling and Regulation)
Act, 1976 (hereinafter referred to as the
Act) viz a viz the disputed land stood
abated.

3. The relevant facts are that upon
the promulgation of the Act Amru, the
predecessor in interest on the petitioner
submitted his return under Section 6 (1)
and without any notice or opportunity
under Section 8(3) thereof an order under
Section 8(4) was issued on 2.6.1984
declaring about 1471 square meters land
as excess from plot nos. 156/6 and 156/7.
However since the order was not served
on the land holder, he executed a
registered will dated 10.5.1991 in favour
of the petitioner who was his daughter-inlaw and subsequently the land holder died
on 4.3.1996. After the death of the land
holder, the petitioner applied for mutation
of her name which was duly entered in the
revenue records. However, a notice under
section 10 (5) was issued on 26.6.1999
against the deceased land holder calling
upon him to surrender the possession of
the alleged excess land but the said notice
was returned by the process server with
the
endorsement
of
his
death.
Nevertheless,
in
pursuance
of
the
aforesaid notice the name of the State was
mutated in the revenue record and now
they are seeking to dispossess the
petitioner thus, the present petition with
the allegation that the Act was repealed
by the Repeal Act of 1999 abating all
proceedings under the Act wherein actual
physical possession was not taken over.

4. The State respondents have filed
their counter affidavit inter alia stating
that a notice under Section 8 (3) of the
Act was issued to the land holder who had
filed his objection on 12.12.1983 but he
did not produce any evidence in support
of his objection and therefore, the
objections were rejected on 2.6.1984
declaring about 1471 sq. meters of land as
surplus under the Act. It is further alleged
that a notice under Section 10 (3) was
duly published in the official gazette and
after publication of the notice the name of
the State Government was duly mutated
on 10.6.1999 and possession was also
taken over and therefore, the petitioner is
not entitled to any relief.

5. Before the court proceeds further
it would be relevant to go through the
scheme of the Act. Upon promulgation of
the Act a statement has to be prepared by
the Competent Authority with regard to
holding of excess land and the draft
statement is required to be served under
Section 8 (3) on the land holder inviting
his objection. After receipt of objection
the Competent Authority, after reasonable
opportunity to the land holder can pass a
final order under Rule 8 (4) declaring
excess vacant land under Section 8 (4)
and a draft statement has to be prepared
under
Section
9.
Thereafter
the
Competent Authority has to issue a
notification under Section 10 (1) inviting
persons who are interested in such vacant
land to lodge their claims whereafter it
has to publish a notification under Section
10 (3) by which the land would deem to
have vested in the State free from
encumbrances with regard to taking over
possession of the vacant land. The
Competent Authority has to issue a notice
under Section 10 (5) of the Act ordering
the land holder to surrender or deliver
possession to the Government or any
person authorised in that behalf within 30
days of the receipt of notice failing which
the Competent Authority is authorized to
1 All] Smt. Shanti Devi V. State of U.P. and others
65
take possession by force under Section 10
(6).

6. It is evident from the record that
notice under Section 10 (5) asking the
land holder to surrender possession was
issued on 26.6.1999 and a copy of the
same is annexed with the counter
affidavit. The notice shows it was
returned with endorsement of the process
server that the land holder is dead and
therefore, notice could not be served.
Thus, it is established beyond any shadow
of doubt that the notice under Section 10
(5) was issued for the first time in June,
1999. Before the notice could be issued,
the
legislature
intervened
and
promulgated the Repeal Act of 1999
which was adopted by the State of U.P.
w.e.f. 18.3.1999. Under the Repeal Act all
proceedings have been abated except
those where actual physical possession
has been taken over and it makes a
distinction between "possession" under
Section 10 (5) or sub clause 6 and
"vesting" as under Section 10(3). A
Division Bench of our Court in the State
of U.P. Vs. Hari Ram [2005 (60) ALR
535], after considering in detail the
scheme of the Act and the Repeal Act has
held that where actual physical possession
before 18.3.1999 is not taken, all
proceedings under the Act would abate
and no action on the basis of the Act can
be taken.

7. However, learned Standing
counsel contends that the possession of
the vacant land after it vested in the State
under Section 10 (3) was taken over by
the State. Apart from a bald allegation in
the
counter
affidavit
there
is
no
documentary proof to prove the factum of
possession. In fact even the date on which
the possession was allegedly taken by this
State is not disclosed in the counter
affidavit. The State Government itself in
exercise of powers under Section 35 of
the Act has issued directions known as
U.P. Urban Land Ceiling (Taking of
Possession, Payment of Amount and
Allied Matters) Direction 1983 for the
purposes of taking over possession. These
directions provide that where possession
of the excess vacant land is taken either
Sub Section 5 or Sub Section 6 of Section
10, entry would have to be made in the
register in Form No. ULC-III and also in
column no. 9 of the Form No. ULC-I. It
further mandates the Competent Authority
to put his signatures in the column no. 2
of Form No. ULC-I and column no. 10 in
Form No. ULC-III in token of verification
of the entries of possession. Neither there
is any allegation in the counter affidavit
nor copies of any of the forms have been
annexed to show that in fact possession
was taken.

8. 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
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.

9. Thus, it is apparent that all
proceedings taken against the deceased
land holder stood abated under the Repeal
Act, 1999 and accordingly, it is declared
66 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
as such and the writ petition succeeds and
is allowed. The respondents are further
directed not to interfere in the possession
of the petitioner over the disputed land
and to further enter their names in the
relevant revenue register.

10. In the circumstances of the case,
no order as to costs.
---------