1. Heard the Learned Counsel for the petitioner and learned Standing Counsel.
2. Application for Substitution [CMA No.86031 of 2010] is allowed. Let necessary amendments be carried out forthwith.
3. With the consent of parties counsel, this petition is being decided finally.
4. The land in dispute falls within the domain of Urban Land (Ceiling and Regulation)Act, 1976. It was repealed by Urban Land (Ceiling and
Regulation) Repeal Act, 1999. According to the petitioners'' counsel, after repeal of the Act, the proceedings initiated in pursuance to the Repeal
Act became nonest and the petitioners are entitled to retain the possession of land in question with hereditary right. Attention of this Court has been
invited to the judgment of Hon''ble Supreme Court in the case reported in Mukarram Ali Khan Vs. State of U.P. and Others, and other judgment
reported in 2011 (3) SCCD 1382 (SC) Ritesh Tewari and another versus State of U.P. & others.
5. In the case of Mukkarram Ali Khan (supra), their Lordships of Hon''ble Supreme Court ruled that in view of repeal of 1976 Act(supra) and
being adopted by the State of U.P by a resolution as required under Art. 252(2) of the Constitution and the repealing Act having come into force
in the State of U.P with effect from 18.3.1999, all pending proceedings under 1976 Act shall be treated to have abated. The operation portion of
the judgment from Mukarram Ali Khan (supra) is reproduced as under :
2.Though many points were urged in support of the appeal, the primary point urged was that possession has not been taken pursuant to orders
passed by the authorities under the Act. An affidavit has been filed indicating that the possession of the land has not been taken and the land in
question continues to be in possession of the appellant and his sons.
3. Learned Counsel for the respondent-State and its functionaries on the other hand contended that the point regarding earlier adjudication was not
urged before the High Court and therefore the High Court has rightly decided that in the absence of any specific plea a new plea cannot be taken
before it.
4. It is to be noted that the Act has been replaced under the Urban Land (Ceiling and Regulation) Act, 1999 (in short the ''Repeal Act'').
Admittedly the State of Uttar Pradesh has since adopted the provisions of the Repeal Act by a resolution as required under Article 252(2) of the
Constitution of India, 1950 (in short the ''Constitution''). Repealing Act has since come into force in the State of Uttar Pradesh with effect from
18.3.1999.
5. Section 4 of the Repeal Act reads as follows:
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 1!, 12, 13 and 14 of the principal Act insofar 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.
6. In view of the affidavit filed by the appellant to which no objection has been filed, undisputed position is that the State has not taken the
possession over the surplus land. Therefore, the proceedings have to be treated to have abated u/s 4 of the Repeal Act.
7. That being so, the appeal deserves to be allowed which we direct.
6. In the case of Ritesh Tewari (supra), again their Lordships of Hon''ble Supreme Court have considered the question with regard to the affect of
the repeal Act. Their Lordships held that the communication between the officers of the department shall not be a ground to affect the rights of the
parties. With regard to Repeal Act in the case of Ritesh Tewari (supra), Hon''ble Supreme Court has considered earlier judgment and held that all
pending proceedings under 1973 Act shall be abated automatically on the commencement of Repealing Act, 1999 provided the possession of the
land involved in a particular case has not been taken taken by the State. To quote relevant portion :
13. We find full force in the submissions so made by Shri Jayant Bhushan to a certain extent, and hold that all proceedings pending before any
court/authority under the Act, 1976, stood abated automatically on commencement of the Act 1999 in force, provided the possession of the land
involved in a particular case had not been taken by the State. Such a view is in consonance with the law laid down by this Court in Pt. Madan
Swaroop Shrotiya Public Charitable Trust Vs. State of U.P. and Others, Mukarram Ali Khan Vs. State of U.P. and Others, and Smt. Sulochana
Chandrakant Galande vs. Pune Municipal Transport and others, JT 2010 SC 298.
7. In view of above, we dispose of the writ petitions finally directing the revenue authorities/respondents to abide by the judgment of Hon''ble
Supreme Court(supra) and not to interfere with the petitioners'' peaceful possession of the land in question in case in view of the provisions
contained in 1976 Act (supra), if the State had not taken possession of the land in dispute.
8. The writ petitions are disposed of accordingly. No order as to costs.