# State of U.P.and another v. Additional District Judge Allahabad and another - **Citation:** (2010) 3 ILRA 1324 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2010-12-22 - **Case number:** Civil Misc .Writ Petition No.2112 of 2005 - **Bench:** D.P. Singh, Mrs. Jayashree Tiwari - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-another-v-additional-district-judge-allahabad-and-another-41787 - **Pages:** 4 ## Headnote Act,1991)-Section-10(5)- possession of surplus land-land declared surplus by ex-party order on 25.03.82 possession memo dated 27-4-96-mere notice-No records placed to prove.that in persuance of notice vacant possession given to collector-despite of opportunity Form ULC I,II and III not produced-in absence of physical possession all proceeding stood autometically abated. Held: Para 7 A perusal of the alleged possession memo dated 27.4.1996, which is Annexure-2 to the writ petition, shows that it is only a notice to the land holder to handover possession of the vacant land to the Collector with a note to the Collector to take possession of the said land. This is, in fact, not a possession memo but only a notice under section 10 3 All] State of U.P. and another V. A.D.J. Allahabad and another 1325 (5) of the Act and there is no material on record to show that in pursuance thereof, either the land holder had given vacant possession to the Collector or the Collector had taken over possession of the vacant land. In fact, the Governor exercising powers under section 35 of the Act, has framed Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 providing procedure for taking over possession of vacant land and keeping that in view, this Court vide order dated 2.2.2010 had given an opportunity to the petitioner to produce the Form ULC I, II and II to show that the possession was taken over by the petitioner. Even those records were not produced before this Court. It is apparent that proceedings under section 10 (6) by which the authorities are entitled to take forcible possession of the vacant land were never initiated, therefore, the appellate court was fully justified in holding that the possession of the vacant land was never taken over by the State. This Court in several cases including in the case of State of U.P. Vs. Hari Ram and another Vs. [2005 (60) ALR] 535 and also in the case of Mukkaram Ali Khan Vs. State of U.P. and others [AIR 2007 SC (Suppl) 985] has held that where actual physical possession has not been taken over, all proceedings under the Act would abate in view of section 3 and 4 of the Repeal Act. Case law discussed [AIR 2007 SC (Suppl) 985] ## Text 1324 INDIAN LAW REPORTS ALLAHABAD SERIES [2010 notice under section 10 (5) of the Act and there is no material on record to show that in pursuance thereof, either the land holder had given vacant possession to the Collector or the Collector had taken over possession of the vacant land. In fact, the Governor exercising powers under section 35 of the Act, has framed Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 providing procedure for taking over possession of vacant land and keeping that in view, this Court vide order dated 2.2.2010 had given an opportunity to the petitioner to produce the Form ULC I, II and II to show that the possession was taken over by the petitioner. Even those records were not produced before this Court. It is apparent that proceedings under section 10 (6) by which the authorities are entitled to take forcible possession of the vacant land were never initiated, therefore, the appellate court was fully justified in holding that the possession of the vacant land was never taken over by the State. This Court in several cases including in the case of State of U.P. Vs. Hari Ram and another Vs. [2005 (60) ALR] 535 and also in the case of Mukkaram Ali Khan Vs. State of U.P. and others [AIR 2007 SC (Suppl) 985] has held that where actual physical possession has not been taken over, all proceedings under the Act would abate in view of section 3 and 4 of the Repeal Act. 8. Lastly, it is urged that in view of the Repeal Act, the appeal itself was not maintainable before the District Judge and therefore entire proceedings are void ab initio. 9. Be it so, quashing of the order of the appellate court would result in revival of another void order and therefore the Court declines to set aside the appellate order. 10. No other point has been urged. 11. For the reasons above, this is not a fit case for interference under Article to 226 of the Constitution of India. Rejected. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 22.12.2010 BEFORE THE HON'BLE D.P. SINGH, J. THE HON'BLE MRS. JAYASHREE TIWARI, J. Civil Misc .Writ Petition No.2112 of 2005 State of U.P.and another ...Petitioners Versus Additional District Judge Allahabad and another ...Respondents Counsel for the Petitioners: Sri S.P. Kesharwani (S.C.) Counsel for the Respondents: ............... Urban Land (Ceiling and Regulation Repeal Act,1991)-Section-10(5)- possession of surplus land-land declared surplus by ex-party order on 25.03.82 possession memo dated 27-4-96-mere notice-No records placed to prove.that in persuance of notice vacant possession given to collector-despite of opportunity Form ULC I,II and III not produced-in absence of physical possession all proceeding stood autometically abated. Held: Para 7 A perusal of the alleged possession memo dated 27.4.1996, which is Annexure-2 to the writ petition, shows that it is only a notice to the land holder to handover possession of the vacant land to the Collector with a note to the Collector to take possession of the said land. This is, in fact, not a possession memo but only a notice under section 10 3 All] State of U.P. and another V. A.D.J. Allahabad and another 1325 (5) of the Act and there is no material on record to show that in pursuance thereof, either the land holder had given vacant possession to the Collector or the Collector had taken over possession of the vacant land. In fact, the Governor exercising powers under section 35 of the Act, has framed Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 providing procedure for taking over possession of vacant land and keeping that in view, this Court vide order dated 2.2.2010 had given an opportunity to the petitioner to produce the Form ULC I, II and II to show that the possession was taken over by the petitioner. Even those records were not produced before this Court. It is apparent that proceedings under section 10 (6) by which the authorities are entitled to take forcible possession of the vacant land were never initiated, therefore, the appellate court was fully justified in holding that the possession of the vacant land was never taken over by the State. This Court in several cases including in the case of State of U.P. Vs. Hari Ram and another Vs. [2005 (60) ALR] 535 and also in the case of Mukkaram Ali Khan Vs. State of U.P. and others [AIR 2007 SC (Suppl) 985] has held that where actual physical possession has not been taken over, all proceedings under the Act would abate in view of section 3 and 4 of the Repeal Act. Case law discussed [AIR 2007 SC (Suppl) 985] (Delivered by Hon. Mrs. Jayashree Tiwari, J.) 1. Heard learned learned counsel for the parties. 2. This petition arising out of proceedings under the Urban Land Ceiling Act, 1976 (here-in-after referred to as the Act) has been filed challenging the order dated 20.12.2000 by which delay in filing the appeal has been condoned and the order dated 28.10.2002 by which the appeal itself has been allowed. 3. It appears that upon enforcement of the Act, notice under section 8 of the Act was issued to the respondent no. 2 proposing to declare 8711.23 sq. meters of land as surplus in the Urban Angloration Area of Allahabad in Peepal Gaon. It appears that an exparte order dated 25.3.1982 was passed holding 8711.23 sq. meters of land as surplus. Thereafter, proceedings under section 10 (1) and 10 (3) of the Act were also initiated and after vesting of the land, a notice under section 10 (5) of the Act was issued on 27.4.1996 calling upon the respondent no. 1 to hand over possession of the surplus land and the Collector, Allahabd was also asked to take possession of the said land in accordance to law. However, the Act was repealed vide Urban Land (Ceiling and Regulation) Repeal Act, 1999 with effect from 18.3.1999 and it was provided that where possession of the vacant land has not been taken over by the Government, all proceedings will abate. It appears that the respondent no. 2 preferred an appeal on 20.12.2000 against the order dated 25.3.1982 along with a delay condonation application with the allegation that he had no notice whatsoever of the proceedings and the order declaring surplus was factually incorrect and therefore, sought quashing of the said order. The delay condonation application was allowed when the counsel for the petitioner lodged no objection vide order dated 20.12.2000 and thereafter the appeal itself has been allowed on the ground that the possession of the vacant land was not taken over by the State and therefore, in view of the 1326 INDIAN LAW REPORTS ALLAHABAD SERIES [2010 provisions of the Repealing Act 1999, entire proceedings abate. 4. Learned counsel for the petitioner has firstly urged that the appellate court had illegally allowed the delay condonation application without any opportunity to the petitioner to file their objections. 5. A perusal of the order shows that the District Government Counsel (Civil) appearing on behalf of the petitioner before the appellate court had himself contended that there was no objection to the delay condonation and therefore, the appellate court was fully justified in condoning the delay. Further, from the pleading of the writ petition, there is no material to show that the admission recorded by the court below was not correct. Even otherwise, a perusal of the order shows that the respondent no., 2 was never personally served the notice issued by the competent authority inviting objections to the proposal sent for declaring surplus land. Further, neither before the lower appellate court nor before this Court, the petitioners have disclosed the actual date of service and the mode of service upon the land holder and even the report of the process server has not been annexed, and as such, the court below was fully justified in believing the affidavit filed by the land holder. Thus, examining the issue from any angle, it cannot be said that there was any error in condoning the delay by the courts below. 6. It is then urged that since the possession of the disputed land had already been taken over by the State on 27.4.1996, thus, the proceedings under the Act could not have been abated in view of Repeal Act. 7. A perusal of the alleged possession memo dated 27.4.1996, which is Annexure-2 to the writ petition, shows that it is only a notice to the land holder to handover possession of the vacant land to the Collector with a note to the Collector to take possession of the said land. This is, in fact, not a possession memo but only a notice under section 10 (5) of the Act and there is no material on record to show that in pursuance thereof, either the land holder had given vacant possession to the Collector or the Collector had taken over possession of the vacant land. In fact, the Governor exercising powers under section 35 of the Act, has framed Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 providing procedure for taking over possession of vacant land and keeping that in view, this Court vide order dated 2.2.2010 had given an opportunity to the petitioner to produce the Form ULC I, II and II to show that the possession was taken over by the petitioner. Even those records were not produced before this Court. It is apparent that proceedings under section 10 (6) by which the authorities are entitled to take forcible possession of the vacant land were never initiated, therefore, the appellate court was fully justified in holding that the possession of the vacant land was never taken over by the State. This Court in several cases including in the case of State of U.P. Vs. Hari Ram and another Vs. [2005 (60) ALR] 535 and also in the case of Mukkaram Ali Khan Vs. State of U.P. and others [AIR 2007 SC (Suppl) 985] has held that where actual physical possession has not been taken over, all 3 All] Om Prakash V. State of U.P. and others 1327 proceedings under the Act would abate in view of section 3 and 4 of the Repeal Act. 8. Lastly, it is urged that in view of the Repeal Act, the appeal itself was not maintainable before the District Judge and therefore entire proceedings are void ab initio. 9. Be it so, quashing of the order of the appellate court would result in revival of another void order and therefore the Court declines to set aside the appellate order. 10. No other point has been urged. 11. For the reasons above, this is not a fit case for interference under Article to 226 of the Constitution of India. Rejected. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 22.12.2010 BEFORE THE HON'BLE ANIL KUMAR, J. MISC. SINGLE No. 2242 of 2006 Om Prakash ...Petitioner Versus State of U.P. Thru Secy. Home and others. ...Respondents Counsel for the Petitioner: K.N.Mishra Counsel for the Respondents: C.S.C. Arms Act-Section 14-Application for Fire Arm Licence-rejected on ground of pendency of criminal case-final report already submitted-apart from that petitioner already possessing DBBL Gun licence-which renewed during this period-held-refusal beyond scope of section 14-not proper-even without assigning any reason by cripic order passed by authorities below-not sustainable. Held: Para 20 Needless to mention herein that it is a well settled provisions of law that any order which has been passed by the authority must always be supported with adequate reasons and justifications and in the present case, the order passed by the Licencing Authority is nonspeaking order and is passed without disclosing any reasons whatsoever, so the same cannot be sustained. Case law discussed: [2010 (I) JIC 232 (All)], [2010 (2) JIC 585 (All)], [2010 (1) JIC 232 (All)].,[2010 (2) JIC 585 (All)] (Delivered by Hon'ble Anil Kumar, J.) 1. Heard Sri K.N. Mishra, learned counsel for the petitioner and Sri Rakesh Srivastava, learned Standing Counsel on behalf of the opposite parties. 2. By means of the present writ petition, the petitioner has challenged the impugned orders dated 07.01.2006 (Annexure2) passed by Commissioner, Devi Patan Mandal, Gonda rejecting the petitioner's appeal and order dated 23.02.2005 (Annexure1) passed by District Magistrate, Gonda by which the petitioner's application for grant of licence for 315 Bore Rifle has been rejected. 3. In brief the facts of the present case are that the petitioner has applied for a licence of N.P. Bore Rifle in the year 1999, thereafter the O.P. No. 3/District Magistrate, Gonda/Licencing Authority called the report from the concerned police authority in order to consider the matter regarding grant of arm licence.