# Span Infra Developers Pvt. Ltd v. State of U.P. & Ors

- **Citation:** (2025) 2 ILRA 628
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-07
- **Case number:** Writ C No. 33222 of 2023
- **Bench:** Shekhar B. Saraf, Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/span-infra-developers-pvt-ltd-v-state-of-u-p-ors-53015
- **Pages:** 4

## Headnote

A. Civil Law -Constitution of India,1950Article
226-Urban
Land(Ceiling
and
2 All. Span Infra Developers Pvt. Ltd. Vs. State of U.P. & Ors.
629
Regulation) Act,1976 & 1999(Repeal)-
Section 3-The petitioner challenged the
interference by the state of up and bareilly
development authority with its possession
over a piece of land declared surplus
under
the
Act,1976-The
petitioner
contended that actual physical possession
had never been taken by the State and
hence, it was entitled to the protection
u/s
3
of
the
Repeal
Act,1999-mere
symbolic possession does not amount to
actual possession and that de jure vesting
u/s 10(3) of the Act is not sufficient to
extinguish the rights of the holder without
actual physical dispossession u/s 10(5) or
10(6)-Finding no evidence of peaceful or
forceful dispossession by the state, the
court held that the petitioner retained
possession of the land and was entitled to
the benefit of the Repeal Act-Hence the
impugned order was quashed and writ of
mandamus was issued to restrain the
respondents from interfering with the
petitioner possession.(Para 1 to 9)

The writ petition is disposed of. (E-6)
List of Cases cited:

## Text

628 INDIAN LAW REPORTS ALLAHABAD SERIES
3. In the present case, the factual
matrix is that the inspection by the
respondent authorities was carried out on
04.03.2023 and the samples' test came out
on 23.06.2023. The respondent authorities
sat over the sample tests for the period of
two and half month and then issued a show
cause notice on 08.09.2023. The relevant
Clause 8.5.6 of Marketing Discipline
Guidelines, 2012 reads as follows :-

 "8.5.6 in respect of all cases of
irregularities, a show cause notice, within
30 days from the date of inspection will be
issued to the dealer indicating all the
irregularities. However, in case samples of
MS/HSD were drawn during inspection
then the show cause notice will be issued
within 30 days of test results. The show
cause notice should be issued along with
all reports and other documents, etc. which
forms the basis of the notice."

4. From the perusal of the said
clause, it is patently clear that show cause
notice is required to be issued within 30
days from the date of inspection and if the
samples are taken during the inspection,
this show cause notice is required to be
issued 30 days from the date of test results
but in the present case, show cause notice
has been issued after more than 2 months
from the date of receipt of test results. No
proper explanation has been provided by
the respondent authorities to indicate the
reasons of such delay.

5.
Upon
further
reading
of
aforesaid clause, we are of the view that
this clause is mandatory in nature. Even if
some flexibility is provided for the two
months delay cannot be accepted. The
judgment relied upon by the respondents
being Indian Oil Corporation Ltd. and
Ors. vs. R.M. Service Centre and Ors.
reported in (2019) 19 SCC 662 is factually
different and would not apply in the present
case as in the Hon'ble Supreme Court
judgment, the clause referred used the word
"preferably", but in the present case, the
words are different and there does not
appear to be any ambiguity with regard to
the time provided for issue of show cause
notice in the said clause.

6. In light of the same, the present
show cause notice cannot be sustained on
the ground that the same has been issued
with an inordinate delay. Accordingly, the
show cause notice is quashed and set aside
and the respondent authorities are granted
liberty to carry out fresh inspection and
draw samples and act in accordance with
law.

7. With the above direction, the
writ petition is disposed of.
----------
(2025) 2 ILRA 628
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2025

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Writ C No. 33222 of 2023

Span Infra Developers Pvt. Ltd
 ....Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ravi Anand Agarwal, Shreya Gupta

Counsel for the Respondents:
Abhimanyu Singh, C.S.C.

A. Civil Law -Constitution of India,1950Article
226-Urban
Land(Ceiling
and
2 All. Span Infra Developers Pvt. Ltd. Vs. State of U.P. & Ors.
629
Regulation) Act,1976 & 1999(Repeal)-
Section 3-The petitioner challenged the
interference by the state of up and bareilly
development authority with its possession
over a piece of land declared surplus
under
the
Act,1976-The
petitioner
contended that actual physical possession
had never been taken by the State and
hence, it was entitled to the protection
u/s
3
of
the
Repeal
Act,1999-mere
symbolic possession does not amount to
actual possession and that de jure vesting
u/s 10(3) of the Act is not sufficient to
extinguish the rights of the holder without
actual physical dispossession u/s 10(5) or
10(6)-Finding no evidence of peaceful or
forceful dispossession by the state, the
court held that the petitioner retained
possession of the land and was entitled to
the benefit of the Repeal Act-Hence the
impugned order was quashed and writ of
mandamus was issued to restrain the
respondents from interfering with the
petitioner possession.(Para 1 to 9)

The writ petition is disposed of. (E-6)
List of Cases cited:
1. Ram Chandra Pandey Vs St. of U.P. (2010)82
ALR 136
2. St. of U.P. Vs Hari Ram (2013) JT 4 SC 275:
(2013) 4 SCC 280
3.Gajanan Kamlya Patil Vs Addl. Collr. & Comp.
Auth. & ors. JT (2014)3 SC 211.
(Delivered by Hon'ble Shekhar B. Saraf, J.
&
Hon'ble Vipin Chandra Dixit, J.)

1. We have heard Mr. Shashi
Nandan, learned Senior Advocate assisted
by Ms. Shreya Gupta learned counsel
appearing on behalf of the petitioner;
learned
Standing
Counsel
for
the
respondents- state and Mr. Abhimanyu
Chauhan, learned counsel appearing on
behalf of Bareilly Development Authority.

2. The case of the petitioner is that
though the land of the petitioner was
declared as surplus under the Urban Land
(Ceiling and Regulation) Act, 1976 (in
short hereinafter referred to as 'Act') but
actual physical possession has not been
taken and thus he would be entitled to the
benefit of sub-section (3) of the Urban
Land (Ceiling and Regulation) Repeal Act,
1999 (in short hereinafter referred to as
'Repeal Act').

3. Specific case of the petitioner is
that actual physical possession had not
been taken and mere symbolic possession
would not be sufficient as the petitioner has
continued in possession of the plot in
question. His name is duly recorded in the
revenue records on the basis of sale deed
executed in his favour on December 29,
2010.

4. The issue was considered by the
Division Bench of this Court in the case of
Ram Chandra Pandey vs. State of U.P.
reported in 2010 (82) ALR 136, wherein
it was held that mere symbolic possession
does not amount to taking over actual
physical possession. It was further held that
unless actual physical possession has been
taken by the State, the party would be
entitled to the benefit of the Repeal Act,
1999.

5. The same view has been taken
by the Apex Court in the case of State of
U.P. vs. Hari Ram [ JT 2013 (4) SC 275:
2013 (4) SCC 280]. The question for
consideration before the Apex Court in the
said case was whether deemed vesting of
surplus land under section 10(3) of the Act
would amount to taking over de facto
possession depriving the landholders of the
benefit of the saving clause under subsection (3) of the Repeal Act. This issue
630 INDIAN LAW REPORTS ALLAHABAD SERIES
was answered by the Apex Court in para
36, 39 and 42 of the said judgment, which
reads as under:-

"Forceful dispossession

36. The Act provides for forceful
dispossession but only when a person
refuses or fails to comply with an order
under sub-section (5) of Section 10. Subsection (6) of Section 10 again speaks of
"possession" which says, if any person
refuses or fails to comply with the order
made under sub-section (5), the competent
authority may take possession of the vacant
land to be given to the State Government
and for that purpose, force?as may be
necessary?can be used. Sub-section (6),
therefore, contemplates a situation of a
person refusing or fails to comply with the
order under sub-section (5), in the event of
which the competent authority may take
possession by use of force. Forcible
dispossession of the land, therefore, is
being resorted to only in a situation which
falls under sub-section (6) and not under
sub-section (5) of Section 10. Sub-sections
(5) and (6), therefore, take care of both the
situations i.e. taking possession by giving
notice, that is, "peaceful dispossession" and
on failure to surrender or give delivery of
possession under Section 10(5), then
"forceful dispossession" under sub-section
(6) of Section 10."
***

39.
The
abovementioned
directives make it clear that sub-section (3)
takes in only de jure possession and not de
facto
possession,
therefore,
if
the
landowner is not surrendering possession
voluntarily under sub-section (3) of Section
10,
or
surrendering
or
delivering
possession after notice, under Section 10(5)
or dispossession by use of force, it cannot
be said that the State Government has
taken possession of the vacant land.

42. The mere vesting of the land
under sub-section (3) of Section 10 would
not confer any right on the State
Government to have de facto possession of
the vacant land unless there has been a
voluntary surrender of vacant land before
18.3.1999. State has to establish that there
has been a voluntary surrender of vacant
land or surrender and delivery of peaceful
possession under sub-section (5) of Section
10 or forceful dispossession under subsection (6) of Section 10. On failure to
establish any of those situations, the land
owner or holder can claim the benefit of
Section 3 of the Repeal Act."

6. The same issue has been
reaffirmed by the Apex Court in the case of
Gajanan
Kamlya
Patil
vs.
Addl.
Collector & Comp. Auth. & Ors.
reported in JT 2014 (3) SC 211.

7. There is no material in the
counter affidavit to demonstrate that the
State
or
the
Bareilly
Development
Authority, Bareilly has taken peaceful
possession, nor is there any material to
demonstrate that the possession was handed
over by the petitioner voluntarily or was
taken over by use of force. There is not
even a whisper in respect of any notice
having been issued under section 10(6) of
the Act. The facts clearly indicates that
only de jure possession has been taken by
the State, not de facto possession, before
coming into force of the Repeal Act.

8. The petitioner is thus entitled to
get the benefit of the section 3 of the
Repeal Act. In the facts and circumstances,
the writ petition deserves to be allowed.

9. Accordingly, the writ petition
succeeds
and
stands
allowed.
The
impugned order dated November 9, 2022 is
2 All. Shiv Balak Singh & Anr. Vs. Board of Revenue & Ors.
631
quashed. A writ of mandamus is
issued commanding the respondents not to
interfere in the actual physical possession
of the petitioner over the land in dispute.
There shall be no order as to costs.
----------
(2025) 2 ILRA 631
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.02.2025

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ C No. 1000097 of 1995

Shiv Balak Singh & Anr. ...Petitioners
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioners:
S.C.
Misra,
I.P.
Singh.
K.K.
Singh,
Mohammad Aslam Khan, P.S. Pandey

Counsel for the Respondents:
C.S.C., Ajai Kumar Nigam, G.S. Nigam,
Sunil Kumar Mishra, Vivek Singh

(A)
Revenue
Law
-U.P.
Zamindari
Abolition & Land Reforms Act, 1950 -
Sections 331 & 333 - Maintainability of
second
appeal
-appeal
cannot
be
converted into revision - conversion of
second appeal into revision held to be
without jurisdiction - Appeal cannot be
converted into revision under Section 333
of the Act - such conversion is illegal and
unsustainable. (Para - 24 to 26)
Petitioners, in continuous possession since the
zamindari period - declared Seerdars under
Section 12 - order attained finality as no appeal
was filed - later declared Bhumidars with
transferable rights under Section 229-B -
affirmed in appeal - belated review was
dismissed
-
second
appeal
was
illegally
converted into revision by the Board of Revenue
- leading to the present writ petition challenging
the impugned order. (Para - 4 to 18 )

HELD: - Appeal could not be converted into
revision. Board of Revenue's order suffered from
apparent illegality and was unsustainable in law.
Second appeal was filed but was wrongly
converted
into
revision,
which
was
impermissible. Hence, the impugned order
suffered from illegality and was liable to be set
aside. (Para - 25,26)

Petition allowed. (E-7)

(Delivered by Hon'ble Irshad Ali, J.)

1. Supplementary affidavits filed by
both the parties are taken on record.

2. Heard Sri Mohd. Arif Khan, learned
Senior Advocate assisted by Sri Mohd.
Aslam Khan, learned counsel for the
petitioners and Sri Shatrughan Chaudhary,
learned Additional Chief Standing Counsel
for the State-respondent.

3. In spite of notice to the respondents,
no one appeared on behalf of respondent
Nos.3 to 5.

4. By means of the present writ
petition, the petitioners have challenged the
order
dated
6.9.1994
contained
as
Annexure-1 to the writ petition. It is further
prayed to issue a writ or direction in the
nature of mandamus thereby commanding
the respondents not to implement the
impugned order dated 6.9.1994 and further
they
be
restrained
from
proceeding
anymore.

5. Factual matrix of the case is that the
petitioners
have
been
in
physical
possession
over
the
plot
No.5053
measuring 3 bighas 8 biswa and plot
No.5054 measuring 3 bighas 7 biswa since
the period of zamindari, however, their
names were not recorded in the records of
Unnao. When the consolidation proceeding