1. We have heard Shri Pradeep Saxena for the Petitioners. Learned Standing Counsel appears for the State Respondents.
2. It was reported by the office that the counter affidavit is not traceable. Both the parties have supplied copy of the counter affidavit, which was
filed by the State. These copies are taken on record and will be substituted in place of the original counter affidavit. The office will continue to trace
the counter affidavit and if it is discovered, it may be restored on record.
3. By this writ petition the Petitioners have prayed for directions not to dispossess them from the land in dispute in pursuance to the order dated
5.12.1985 passed by Respondent No. 2 and to direct the Respondents authority to expunge the name of ''Nagar Ceiling Bhumi'' from the revenue
record and the names of the Petitioners be entered.
4. Late Shri Dodi son of Shri Purnami resident of Village Sanaiya Rani Mewa Kunvar, Pargana, Tehsil and District Bareilly filed a return u/s 6(1)
of the Urban Land (Ceiling and Regulation) Act, 1976 as Return No. 713/93/81. After survey a draft statement was prepared by the competent
authority u/s 8(3) of the Act, proposing 11046.67 square meters to be declared as surplus land. The returnee late Dodi filed objections. After
considering his objections the draft statement was modified and that 9163.50 square meters land was declared excess land on 5.12.1985. The
notification u/s 10(3) of the Act was issued on 29.7.1993, and published in the official gazette on 11.9.1993 after which the land stood vested in
the State of UP. In paragraphs 10 and 11 of the counter affidavit it is stated as follows:
10. That in reply to the contents of paragraph No. 9, (a), (b), (c), (d) and (e) of the writ petition it is submitted that the Petitioner did not file any
appeal or revision against the order dated 05.12.1985 passed u/s 8(4) of the Act under the Principal Act nor made any application to the
Government for restoration of the land under the Repeal Act after the Principal Act of 1976 was repealed by vested legislature in State of U.P.
11. That in reply to the contents of paragraph Nos. 10 and 11 of the writ petition it is submitted that the apprehension of the Petitioner that he
would be dispossessed, is wholly unfounded inasmuch the State Government, after the repeal of the Principal Act of 1976, cannot take any
proceedings now u/s 10(5) or 10(6) of the Act in pursuance of the orders passed under the Principal Act.
5. It is submitted by learned Counsel for the Petitioners that an objection was filed by the Petitioners u/s 20 of the Act. It remained pending and
was not decided, until the Act was repealed. He submits that on account of the objection of the application u/s 20, the possession was not taken
up to the date of the repeal of the Act. Since the physical possession was not transferred, the entire proceedings are liable to be abated.
6. It is submitted by learned Counsel for Petitioners, that u/s 3 of the Repeal Act the vesting of the vacant land is not sufficient. Under Sub-section
(3) of Section 10 of the Act the possession of the land must be taken by the State or any person authorised by the State Government, failing which
the entire proceeding would abate under the Repeal Act, 1999. Section 3 and 4 of the Repeal Act, 1999 are quoted as below:
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 Sub-section (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.
7. Learned Counsel for the Petitioners has relied upon judgments of the Supreme Court and the High Courts in Pt. Madan Swaroop Shrotiya
Public Charitable Trust Vs. State of U.P. and Others, Kailash and Anr. v. State of U.P. and Ors. 2005 (61) ALR 383; State of UP v. Devendra
Nath and Anr. Civil Misc. Writ petition No. 76070 of 2005 decided on 15.12.2005; Babu Ram and Ors. v. State of UP and Ors. 2009 (75)
ALR 873; Ram Chandra Pandey v. State of UP and Ors. 2010 (82) ALR 136 and M/s Star Paper Mills Ltd. v. State of UP and Ors. 2011 (1)
CRC 93. In all these cases, it was held following leading judgment in Pt. Madan Swaroop Shrotiya Public Charitable Trust (supra), that unless
actual physical possession was taken for which proceedings are provided u/s 10(5) and 10(6) of the Act, and there is proof of taking over
possession, the proceedings will abate u/s 3 of the Repeal Act, 1999.
8. Learned Standing Counsel, on the other hand, submits that once the land has vested in the State and that the proceeding for taking over
possession were initiated, with a notice u/s 10(5) of the Act, there will be a presumption of official acts of taking over possession. She has relied
upon judgments in Smt. Sulochana Chandrakant Galande v. Pune Municipal Transport and Ors. Civil Appeal No. 492 of 2007 decided on August
3, 2010 in which the Supreme Court held in paras 31, 32, 33, 34 as follows:
31. Undoubtedly, the Act, 1976, stood repealed by the Act 1999. However, it has no bearing on this case for the reason that proceeding pending
in any Court relating to the Act, 1976, stood abated, provided the possession of the land had not been taken from the owner. Therefore, in a case,
where the possession has been taken, the repeal of the Act would not confer any benefit on the owner of the land. (Vide Pt. Madan Swaroop
Shrotiya Public Charitable Trust Vs. State of U.P. and Others, Ghasitey Lal Sahu v. Competent Authority (2004) 13 SCC 452 ), and Mukarram
Ali Khan Vs. State of U.P. and Others,
32. From the above, the following factual situation emerges:
(I) The land was declared surplus under the Act, 1976, and acquired in 1979.
(II) Possession of the land was taken in 1979 by the State of Maharashtra and it was handed over to PMT for construction of the residential
quarters for the staff.
(III) Appellant has not stated anywhere in the pleadings as to whether any amount/ compensation as provided under the Act, 1976, had been
received/accepted by her.
(IV)Appellant, for the reason best known to her, did not file appeal before the Land Tribunal, though Act, 1976 provides for two appeals.
(V) Appellant woke up from deep-slumber only after five years of the judgment of this Court in Atia Mohammadi Begum (supra) and filed revision
u/s 34 of the Act, 1976, in 1998.
(VI) The State Government allowed the revision without taking into consideration the point of delay; rather it relied upon its own circulars.
(VII) The State Government did not consider the consequences and particularly the issue of dispossession of the Appellant from the land in dispute
in 1978 itself.
(VIII) The judgment in Atia Mohammadi Begum (supra) has been over-ruled by this Court in N. Audikesava Reddy (supra).
33. Therefore, the law, as exists today, is that the land in dispute could be subjected to the provisions of the Act, 1976, with effect from
17.5.1976, i.e. the date on which the suit land came within the limits of the Municipal Corporation. The Act stood repealed in 1999, but the
proceedings pending in any Court would stand abated provided the tenure-holder was in possession of the land on the date of the commencement
of the Act 1999. The High Court has taken note of the fact that the Appellant''s revision had been entertained only on the basis of the judgment of
this Court in Atia Mohammadi Begum (supra), which stood over-ruled by the subsequent judgment in N. Audikesava Reddy (supra).
9. Learned Standing Counsel has also relied upon a judgment of this Court in Mangal Sen v. State of U.P. and Ors. 2011 (2) ALJ 752 in which it
was held that once the possession has been taken and Dakhalnama (possession memo), was signed by a witness and authorised officer concerned,
the proceeding of taking over possession had come to an end, after which the Repeal Act will not benefit the Petitioner.
10. In all the aforesaid cases, the Courts have held that after final orders are passed u/s 8(4) and a declaration is issued u/s 10(3) vesting the
surplus land in the State, the Repeal Act will not apply, if the possession of the land is taken over in his behalf or by a competent authority. In order
to prove taking over possession prior to 18.3.1999, it is incumbent upon the State to establish in the Court that the possession was taken in
accordance with the law, namely, that the person, in whose hand the land is declared surplus, has handed over possession in response to the notice
u/s 10(5) of the Act or where the possession was not handed over, a Dakhalnama (possession memo) has been prepared, signed by a witness and
authorised officer concerned in proceedings u/s 10(6) of the Act.
11. The possession of the land is taken in proceedings under Sub-sections (5) and (6) of Section 10 of the Act of which the entries are made in a
register in Form No. U.L.C.-III, and possession in column-9 of Form No. U.L.C.-I. The competent authority is required in token of the
verification of the entries, to put signatures in column-2 of Form No. U.L.C.-I and column-10 of Form-U.L.C. III.
12. In Smt. Sulochana Chandrakant Galande (supra) the Supreme Court, after considering Pt. Madan Swaroop Shrotiya Public Charitable Trust
(supra); Ghasitey Lal Sahu and Anr. v. Competent Authority (2004) 13 SCC 452 ; and Mukarram Ali Khan Vs. State of U.P. and Others, held in
para-32 as quoted above, that in the facts of that case, the land was declared as surplus in 1976, and acquired in 1979, the Appellant had not
stated anywhere in the pleadings as to whether any amount/compensation was received or accepted by her and whether any appeal was filed. The
Supreme Court held that the land in dispute will be subjected to the provisions of the Urban Ceiling Act w.e.f. 17.5.1976, i.e. the date on which
the suit land had come within the limits of Municipal Corporation. The proceedings did not abate as the High Court had taken note of the fact, that
the Appellant''s revision had been entertained only on the basis of the judgment in Atia Mohammadi Begum, which had stood over-ruled by the
subsequent judgment in N. Audikesava Reddy''s case. The Supreme Court observed that in that case the possession of the land was taken and
handed over to Pune Municipal Corporation, for establishing a bus depot in the year 1988. The bus depot was constructed on the part of the suit
land. However, the Appellant preferred a revision u/s 34 of the Act on 06.4.1998 contending that the land ought not to have been acquired under
the Act, 1976, on the ground that the suit land was not within the urban area. It was held that the suit land had fallen into urban area. There was no
question of dispute regarding taking over possession inasmuch as the land was admittedly taken in possession by the State and handed over to
Pune Municipal Corporation in the years 1978-1979.
13. In Mangal Sen (supra) a Division Bench of this Cour recorded finding in para-25 regarding possession as follows:
25. From a perusal of the record it appears that after due Notification u/s 10(1) dated 6.4.1985 and declaration u/s 10(3) on 6.11.1985 a notice
for possession u/s 10(5) of the Act was issued on 20.2.1986 and an authorization to the Tehsildar by the competent authority was also given in this
regard on 17.7.1985 itself. So the procedure prescribed u/s 10 of the Principal Act has been fully complied with. The possession has been taken
without any resistance by the Petitioner, obviously under the cover of Dakhalnama (possession memo) signed by a witness and authorized officer
concerned on 30.1.1990.
14. In absence of any pleadings or assertion by the State that the possession of the land was given in response to Section 10(5) of the Act, or that
proceedings u/s 10(6) was taken and any Dakhalnama (possession memo) was prepared and entries were made in Form No. U.L.C. III, we find
that the Petitioner is still in possession of the land.
15. In the facts of the case, we are of the view that on the enforcement of Urban Land (Ceiling and Regulation) Repeal Act, 1999, the proceedings
undertaken under Urban Land (Ceiling and Regulation) Act, 1976 in respect of declaration of surplus land in the hands of late Dodi, have abated
under the Repeal Act, 1999.
16. The writ petition is allowed. A writ of mandamus is issued directing the Respondents not to take possession of the disputed land in respect of
surplus land in Case No. 713/93/81 (State v. Dadi). The revenue record will be corrected accordingly treating the proceedings under Urban Land
(Ceiling and Regulation) Act, 1976 initiated against late Shri Dodi son of Shri Purnani, to have abated under the Urban Land (Ceiling and
Regulation) Repeal Act, 1999.