Allahabad High Court
Gayur And Another vs State Of U.P. And Others on 20 August, 2019
Bench: Pradeep Kumar Singh Baghel, Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- WRIT - C No. - 31072 of 2009 Petitioner :- Gayur And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- Gaurav Sisodia Counsel for Respondent :- C.S.C., Brijesh Ojha Hon'ble Pradeep Kumar Singh Baghel, J.
Hon'ble Pankaj Bhatia, J.
(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.) The petitioners have instituted this writ proceedings for issuance of a writ of mandamus directing the respondents not to compel them to handover the possession of the land, which is said to be declared surplus under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (for short Act No. 33 of 1976)1. They claim to be true and actual owner of this land.
The facts which emerge from the material on the record are that the petitioners claim to be owner of Plot Nos. 250, 251 and 283M situated in Village Chak Adampur, district Saharanpur. A proceeding under the Act, 1976 was initiated against the father of the petitioners, Yusuf, for declaration of the surplus land. The petitioners' father had filed a statement under sub-section (1) of Section 6 of the Act, 1976. On the basis of the said statement Case/ Suit No. 2201/1976, State v. Yusuf, was registered. A statement under sub-section (3) of Section 8 of the Act, 1976 was issued on 06th November, 1978, wherein total 8196.80 square meters land was proposed to be surplus inclusive of 2000 square meters land from Khasra Nos. 250, 251 and 283 and accordingly, by excluding said 2000 square meters of land, only 6196.80 square meters of land was proposed to be declared surplus. The said statement is said to be served upon the tenure holder on 30th November, 1978 through the process server. In response thereto, the petitioners' father had filed an objection on 12th December, 1978. The Prescribed Authority passed an order on 27th November, 1980 under sub-section (4) of Section 8 of the Act, 1976 and the final statement under Section 9 of the Act, 1976 was issued on 02nd April, 1981. It is stated that it was served on the tenure holder on 06th April, 1981. Thereafter the matter was sent for publication in the Government Gazette in terms of sub-section (1) of Section 10 and sub-section (3) of Section 10 of the Act, 1976 on 28th February, 1983 and 18th December, 1986 respectively. After the notification, a notice under Sub-section (5) of Section 10 of the Act, 1976 was issued on 29th October, 1987 calling upon the tenure holder to surrender the possession. This notice is alleged to be served upon the tenure holder personally by process server on 20th November, 1987. The State claimed that the possession has been taken pursuant to the said notice under sub-section (5) of Section 10 of the Act, 1976 on 31st November, 1987, the name of the State Government has been recorded in the revenue record on 06th March, 1993 and the surplus land has been handed over to the Saharanpur Development Authority, Saharanpur on 29th June, 2002.
It is asserted by the petitioners that they are still in physical and cultivatory possession of the land which has been declared surplus. The petitioners have also averred that no notice under sub-section (5) of Section 10 of the Act, 1976 was issued to the petitioners and they have never signed any document regarding the delivery of possession. It is also averred that no forceful possession under the provisions of sub-section (6) of Section 10 of the Act, 1976 was taken by the State from the petitioners or actual tenure holder (father of the petitioners). The petitioners have also averred that they have not received any compensation of the land, which has been declared surplus. It is further stated that for the first time the name of the State Government was mutated in the revenue records on 06th February, 2008, after about ten years of coming into force of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act 15 of 1999)2. It is stated that the State Government is alleged to have transferred the land in favour of the Saharanpur Development Authority on 29th January, 2002, much after coming into force of the Repeal Act. In the Dakhalnama it is clearly recorded that the land is agricultural land, which shows that at the time of handing over possession to the Saharanpur Development Authority the land was not an urban land and it was agricultural land. The petitioners claim that they are still in possession.
It is stated that under Section 2(o) of the Act, 1976 the "urban land" is defined, it does not include the land which is mainly used for the purpose of agriculture. Section 2(q) also provides "vacant land", not being land mainly for the purpose of agriculture.
Counter affidavits have been filed on behalf of the State authorities and the Saharanpur Development Authority.
The stand taken in the counter affidavit of the State is that after the publication in the Government gazette under sub-section (1) of Section 10 and sub-section (3) of Section (10) of the Act, 1976 the land vests in the State Government. Thereafter a notice under sub-section (5) of Section 10 of the Act, 1976 was issued on 29th October, 1987 and the same was served upon the tenure holder through the process server personally on 20th November, 1987. It is further stated that after adopting all the proceedings according to law on the aforesaid declared surplus land, the possession was taken by the State on 31st November, 1987 and thereafter the aforesaid surplus land has been handed over to the Saharanpur Development Authority on 29th January, 2002 for construction of Awas Yojna. In support of the fact that the possession has already been taken much before the Repeal Act came into force, a xerox copy of the possession order/ letter dated 31st November, 1987 is annexed along with the counter affidavit.
In the counter affidavit filed on behalf of the Saharanpur Development Authority it is stated that the stand taken by the tenure holder Yusuf in his application dated 12th December, 1978 that his land be exempted under Section 20 of the Act, 1976 on the ground that the disputed land was being used for the agricultural purpose, was not found correct whereas the competent authority has found that the disputed land was not agricultural land. It is stated that after the land was declared surplus by the competent authority on 27th November, 1980, the notifications under sub-sections (1) and (3) of Section 10 of the Act, 1976 were made on 24th February, 1983 and 04th December, 1986 respectively. Thus, the disputed land stood vested in the State Government. It is stated that notice under sub-section (5) of Section 10 of the Act, 1976 was issued to the tenure holder on 01st October, 1987, which was served upon him and pursuant thereto the possession memo was prepared on 31st November, 1987. The said Dakhalnama is on the record as CA-5 to the counter affidavit. Later, the State Government has transferred the property to the Saharanpur Development Authority on 29th January, 2002 for being utilized in its residential schemes. Subsequent transfer/ possession memo dated 29th January, 2002 was executed by the Revenue Inspector, Saharanpur (as representative of the Zila Adhikari, Saharanpur), Tehsildar Saharanpur, Surveyor Urban Land Ceiling and Junior Engineer Saharanpur Development Authority (as representative of the Vice-Chairman of the Saharanpur Development Authority). The said possession memo is on the record as annexure-CA-6 to the counter affidavit.
We have heard Sri Madhusudan Dixit, learned counsel for the petitioners, learned Standing Counsel and learned counsel for the Saharanpur Development Authority.
Sri Madhusudan Dixit, learned counsel for the petitioners, submitted that the proceedings stood abated in terms of Section 3 of the Repeal Act. It is submitted that the expression "deemed to have acquired" or "deemed to have vested" would not be applicable if the State fails to establish that the actual possession has been taken in terms of sub-section (5) of Section 10 and sub-section (6) of Section 10 of the Act, 1976. He submitted that in terms of the notice issued under sub-section (5) of Section 10 of the Act, 1976 the tenure holder has not handed over possession to the Collector, which is evident from the material on the record. He further submitted that from the pleadings of the respondents in their counter affidavits it is clear that recourse to sub-section (6) of Section 10 of the Act, 1976 has not been taken as there is no pleading in the counter affidavits that forcible possession has been taken under sub-section (6) of Section 10 of the Act, 1976. Moreover, the State has failed to point out any document in the original record showing taking over the forcible possession.
Sri Dixit has drawn our attention to the Dakhalnama and the averments made in the counter affidavits filed on behalf of the State and the Saharanpur Development Authority that the possession has been taken on 31st November, 2002, which is non-existent date on calender and the repeated reference of the said date not only in the original records but also in the affidavits filed on behalf of both the respondents clearly demonstrate that the documents showing possession is a paper work in the office of the concerned respondent. He has further pointed out that it is not the case of the respondents that tenure holder voluntarily surrendered the possession. Thus, it was imperative that the possession should have been taken in terms of sub-section (6) of Section 10 of the Act, 1976 and there is no pleading in the affidavits of the respondents that forcible possession from the tenure holder was taken.
He further urged that from the memo of possession it is evident that the tenure holder was not present at the time of delivery of possession and on the possession memo there is no signature of the tenure holder. This fact clearly shows that the petitioners have not given possession voluntarily pursuant to the notice issued under sub-section (5) of Section 10 of the Act, 1976. In view of the said facts, it is urged that the proceedings stood abated as the tenure holders are still in possession of the surplus land when the Repeal Act came into force.
He urged that the notice under sub-section (5) of Section 10 of the Act, 1976 was issued on 29th October, 1987 and is alleged to have been served upon Yusuf on 20th November, 1987 and the possession is taken on 31st November, 1987 i.e. before expiry of 30 days. Learned counsel for the petitioners asserted that the Directions, issued by the State Government under Section 35 of the Act, 1976, namely, The Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 19833 has been completely ignored in taking the possession.
He submitted that the petitioners' land is agricultural land as defined under Sections 2(o) and 2(q) of the Act, 1976, which is evident from the possession memo dated 31st November, 1987 when land was alleged to be transferred to the Saharanpur Development Authority and it is recorded therein that land is agricultural land. It was sought to be urged that transfer of land to the Saharanpur Development Authority is no transfer in the eye of law because the State had not taken possession in accordance with law, therefore, it had no authority to transfer it in favour of the Saharanpur Development Authority.
Sri Dixit has placed reliance on the judgments of the Supreme Court in the case of State of Uttar Pradesh v. Hari Ram4; Special Leave Petition (C) No. 16582 of 2014 decided with Special Leave Petition (C) No. 38922 of 2013, State of U.P. and another v. Vinod Kumar Tripathi and others, on 19th January, 2016; and the judgments of this Court in State of U.P. and another v. Nek Singh5; Ram Chandra Pandey v. State of U.P. and others6; Ehsan v. State of U.P. and another7; Lalji v. State of U.P. and others8; and Yasin and others v. State of U.P. and others9.
We had summoned the original record as there was serious dispute with regard to taking over of physical possession of the surplus land. We have perused the original records. Possession memo is dated 31(Sic) November, 1987. One Sarjeet Singh, Bhulekh Nirikshak, and the Lekhpal of the area have taken the possession. Petitioners or their father did not sign on the possession memo. There is no explanation in counter affidavits filed by the respondents on this aspect.
We have pointed out to the learned Standing Counsel that in the original dakhalnama the date has been mentioned as 31st November, 1987, which is apparently incorrect as the month of November is always of 30 days. Learned Standing Counsel has not taken a stand that it was a typographical error. Moreover, in both the counter affidavits filed by the State authorities and the Saharanpur Development Authority the same date has been mentioned in several paragraphs of the affidavits. Hence, there is no stand taken by the respondents that the said date appears to be recorded inadvertently or it is a typographical error. Even at this stage learned Standing Counsel has not tried to explain this apparent error. Hence, we are not in a position to treat the obvious mistake as typographical or inadvertent mistake.
Learned Standing Counsel submitted that after the notifications under sub-section (1) and sub-section (3) of Section 10 of the Act, 1976 the land stood vested in the State Government and a notice was served upon the petitioners under sub-section (5) of Section 10 of the Act, 1976 personally by the process server on 20th November, 1987 and thereafter on 31st November, 1987 the possession has been taken. Hence, the proceedings cannot be said to be abated under the Repeal Act.
Learned Standing Counsel has placed reliance on the judgments of the Supreme Court in the cases of State of Assam v. Bhaskar Jyoti Sarma and others10 and State of U.P. and others v. Surendra Pratap and others11, and judgment of this Court in Shiv Ram Singh v. State of U.P. and others12.
Learned counsel for the Saharanpur Development Authority has adopted the submissions of learned Standing Counsel.
It is apposite at this stage to set out relevant provisions of the Acts and the executive orders issued from time to time.
Section 2(o) of the Act, 1976 defines "urban land" and Section 2(q) defines "vacant land". Section 6 of the Act, 1976 provides that owner of the land shall submit a statement giving detail of the vacant land. Section 8(1) enjoins that the competent authority shall get a survey of the land conducted and on the basis of the said survey a draft statement under sub-section (3) of Section 8 of the Act, 1976 was required to be served upon the land owner calling for objection to the said statement within thirty days and the order is passed under sub-section (4) of Section 8 of the Act, 1976 and later a notification is issued under sub-section (1) of Section 10 for publication in the Gazette giving particulars of the vacant land. Thereafter another notice is published stating that the land shall be deemed to have been vested on the Government free from all encumbrances. Thereafter a notice under sub-section (5) of Section 10 of the Act, 1976 is issued calling upon the land owner to hand over possession of the land declared surplus. If the land owner fails to handover the possession voluntarily in response to the aforementioned notice, sub-section (6) of Section 10 of the Act, 1976 confers a power upon the competent authority to take forceful possession. For the sake of convenience, Sections 2(o), 2(q) and sub-sections (5) and (6) of Section 10 of the Act, 1976 are reproduced hereunder:
"2(o) "urban land" means,--
(i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or
(ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town committee, a cantonment board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture.
Explanation.--For the purpose of this clause and clause (q),--
(A) "agriculture" includes horticulture, but does not include--
(i) raising of grass,
(ii) dairy farming,
(iii) poultry farming,
(iv) breeding of live-stock, and
(v) such cultivation, or the growing of such plant, as may be prescribed;
(B) land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture:
Provided that where on any land which is entered in the revenue or land records before the appointed day as for the purpose of agriculture, there is a building which is not in the nature of a farm-house, then, so much of the extent of such land as is occupied by the building shall not be deemed to be used mainly for the purpose of agriculture:
Provided further that if any question arises whether any building is in the nature of a farm-house, such question shall be referred to the State Government and the decision of the State Government thereon shall be final;
(C) Notwithstanding anything contained in clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture;"
"2(q) "vacant land" means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include--
(i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated;
(ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building; and
(iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building:
Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live-stock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then, so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purposes of this clause."
"10(5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice."
"10(6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary.
Explanation.--In this section, in sub-section (1) of section 11 and in sections 14 and 23, "State Government", in relation to--
(a) any vacant land owned by the Central Government, means the Central Government;
(b) any vacant land owned by any State Government and situated in the Union territory or within the local limits of a cantonment declared as such under section 3 of the Cantonments Act, 1924 (2 of 1924), means that State Government."
Section 11 of the Act, 1976 enjoins that compensation shall be paid to the land owner.
In exercise of the powers under Section 35 of the Act, 1976 the State Government issued the Directions, 1983 known as The Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 (Directions issued by the State Government under Section 35 of the Act, 1976) which is reproduced below:
"The Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 (Directions issued by the State Government under Section 35 of 1976 Act):
"In exercise of the powers under Section 35 of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No.33 of 1976), the Governor is pleased to issue the following directions relating to the powers and duties of the competent authority in respect of amount referred to in Section 11 of the aforesaid Act to the person or persons entitled thereto:
1. Short title, application and commencement.-- These Directions may be called the Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 (2) The provisions contained in this direction shall be subjected to the provisions of any directions or rules or orders issued by the Central Government with such directions or rules or orders.
(3) They shall come into force with effect from the date of publication in the gazette.
2. Definitions.--* * *
3. Procedure for taking possession of vacant land in excess of ceiling limit.--(1) The competent authority will maintain a register in Form No.ULC -1 for each case regarding which notification under sub-section (3) of Section 10 of the Act is published in the gazette.
4. (1) * * * (2) An order in Form No. ULC-II will be sent to each land holder as prescribed under sub-section (5) of Section 109 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No. ULC-I. (3) On possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) of Section 10 of the Act, entries will be made in a register in Form ULC-III and also in Column 9 of the Form No. ULC-1. The competent authority shall in token of verification of the entries, put his signatures in Column 11 of Form No. ULC-1 and Column 10 of Form No. ULC-III.
Form No. ULC-1 Register of notice under Sections 10(3) and 10(5) (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) Sl. No. Sl.No. of register of receipt Sl. No. of register of taking possess-ion Case Num-ber Date of Notifi-cation under Secti-on 10(3) Land to be acqui-red village Mohali Date of taking over posse-ssion Remarks Signature of competent authority Form No. ULC-II Notice order under Section 10(5) [See clause (2) of Direction (3)] In the court of competent authority U.L.C. ...............
No..................... Date ..................
Sri/Smt............................... T/o .........................
In exercise of the powers vested under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No.33 of 1976), you are hereby informed that vide Notification No....... dated ..... under Section 10(1) published in Uttar Pradesh Gazette dated ...... following land has vested absolutely in the State free from all encumbrances as a consequence Notification under Section 10(3) published in Uttar Pradesh Gazette dated ....... Notification No......... dated .... With effect from .......... you are hereby ordered to surrender or deliver the possession of the land to the Collector of the District Authorised in this behalf under Notification No.324/II-27- U.C.77 dated February 9, 1977, published in the gazette, dated March 12, 1977, within thirty days from the date of receipt of this order otherwise action under sub-section (6) of Section 10 of the Act will follow.
Description of vacant land Location Khasra No. identification Area Remarks 1 2 3 4 Competent Authority ...............................
...............................
No. ....................... Dated.............................
Copy forwarded to the Collector ............ with the request that action for immediate taking over of the possession of the above detailed surplus land and its proper maintenance may, kindly be taken an intimation be given to the undersigned along with the copy of certificate to verify.
Competent Authority ...............................
..............................."
The Act, 1976 was repealed by the Parliament pursuant to the resolutions passed by the State Legislatures of Haryana and Punjab empowering the Parliament to repeal the Act, 1976 in those States. Accordingly, the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act 15 of 1999) was passed by the Parliament. Subsequently, it was open to the other States also to adopt the Repeal Act by resolution and accordingly, the Act, 1976 would stand repealed in such State from the date of adoption of the Repeal Act. In the State of Uttar Pradesh, the Repeal Act was adopted on 18th March, 1999. Sub-section (2) of Section 3 of the Repeal Act provides that if the possession has not been taken, the proceeding under the Act, 1976 shall stand abated. For convenience, Section 3 of the Repeal Act is reproduced as under:
"3. Saving.-- (1) The repeal of the principal Act shall not affect--
(a) the vesting of any vacant land under sub-section 10, possession of which has been taken over by the State Government or any person duly authorized 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 authorized 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."
The only question which falls for determination is whether the possession taken by the respondents-State functionaries on 31st November, 1987 is a valid and legal and in case it is found that the said possession was illegal and void, in that event whether the proceedings shall stand abated in terms of Section 3 of the Repeal Act or not. An ancillary question also arises as to whether the possession can be taken by the Revenue Inspector and the Lekhpal as representative of the District Magistrate.
The Supreme Court in the case of Hari Ram (supra) went elaborately into all implications of the statutory provisions and the directions issued by the State of U.P., wherein detailed procedures have been laid down for taking possession of surplus land. It is worthwhile to mention that the Directions, 1983 has statutory flavour as it has been issued under Section 35 of the Act, 1976. In the said case, the Supreme Court has held as under:
"30. Vacant land, it may be noted, is not actually acquired but deemed to have been acquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in hands of few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as sub-sections (5) and (6) of Section 10, the words "acquired" and "vested" have different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislative intent.
Voluntary surrender
31. The "vesting" in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The Court in Maharaj Singh v. State of U.P.13, while interpreting Section 117(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 held that "vesting" is a word of slippery import and has many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The Court in Rajendra Kumar v. Kalyan14 held as follows: (SCC p. 114, para 28) "28. ...We do find some contentious substance in the contextual facts, since vesting shall have to be a "vesting" certain. 'To "vest", generally means to give a property in.' (Per Brett, L.J. Coverdale v. Charlton15 : Stroud's Judicial Dictionary, 5th Edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. To 'vest', cannot be termed to be an executor devise. Be it noted however, that 'vested' does not necessarily and always mean 'vest in possession' but includes 'vest in interest' as well."
32. We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act.
33. Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under sub-section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land.
Peaceful dispossession
34. Sub-section (5) of Section 10, for the first time, speaks of "possession" which says where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorized by the State Government.
35. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) to Section 10, there is no necessity of using the expression "where any land is vested" under sub-section (5) to Section 10. Surrendering or transfer of possession under sub-section (3) to Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) to Section 10 to surrender or deliver possession. Sub-section (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while sub-section (6) of Section 10 contemplates a situation of forceful dispossession.
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. Sub-section (6) to 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 only in a situation which falls under sub-section (6) and not under sub-section (5) to 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), than "forceful dispossession" under sub-section (6) of Section 10."
The same issue with regard to peaceful possession and forceful possession in terms of sub-sections (5) and (6) of Section 10 of the Act, 1976 has been elaborately considered again by the Supreme Court in the case of Gajanan Kamlya Patil v. Addl. Collector & Comp. Auth. & ors.16. The Supreme Court followed its earlier judgment in State of U.P. v. Hari Ram (supra). In this case the Supreme Court extensively quoted with approval Paragraphs-30 to 36 of Hari Ram (supra). The relevant part of the judgment of Gajanan Kamlya Patil (supra) is extracted below:
"13. We have, therefore, clearly indicated that it was always open to the authorities to take forcible possession and, in fact, in the notice issued under Section 10(5) of the ULC Act, it was stated that if the possession had not been surrendered, possession would be taken by application of necessary force. For taking forcible possession, certain procedures had to be followed. Respondents have no case that such procedures were followed and forcible possession was taken. Further, there is nothing to show that the Respondents had taken peaceful possession, nor there is anything to show that the Appellants had given voluntary possession. Facts would clearly indicate that only de jure possession had been taken by the Respondents and not de facto possession before coming into force of the repeal of the Act. Since there is nothing to show that de facto possession had been taken from the Appellants prior to the execution of the possession receipt in favour of MRDA, it cannot hold on to the lands in question, which are legally owned and possessed by the Appellants. Consequently, we are inclined to allow this appeal and quash the notice dated 17.2.2005 and subsequent action taken therein in view of the repeal of the ULC Act. The above reasoning would apply in respect of other appeals as well and all proceedings initiated against the Appellants, therefore, would stand quashed."
In Special Leave Petition (C) No. 16582 of 2014 (supra), the Supreme Court has held as under:
"...As could be seen from the Possession Certificate under Section 10(6) of the repealed ULC Act, District Magistrate, who has been authorised, possession of the land in question was not taken. The Tehsildar was given liberty to make the mutation proceedings and make entry in the Revenue Record after taking over possession as provided under Section 10(6) of the ULC Act and inform the same to the competent authority. The possession of the land in question is not taken from the declarant or his legal representatives in accordance with Section 10(6) of the ULC Act, from the original record it is noted that, there is no signature of taking over possession from the declarant or the legal representatives, more so, the competent authority has no power to nominate officer on behalf of the State Government to take possession as provided under Section 10(6) of the ULC Act, therefore, we are not inclined to interfere with the impugned order."
In Special Leave Petition (C) No. 17799 of 2015 (supra), which was also taken up with Special Leave Petition (C) No. 38922 of 2013, State of U.P. and another v. Vinod Kumar Tripathi and others, vide order dated 19th January, 2016 the Supreme Court has held as under:
"As could be seen from the original record, possession of the land in question is taken neither by the competent authority or his authorised representative by following the procedure as laid down under Section 10(5) and Section 10(6) of the Urban Land (Ceiling & Regulation) Act, 1976 (now repealed), therefore, the impugned order cannot be interfered. Hence, the special leave petition is liable to be dismissed and is hereby dismissed accordingly."
We find that this Court has also followed the same principle in long line of decisions. A Division Bench of this Court in State of U.P. and another v. Nek Singh17 followed the judgments of earlier Division Benches of this Court in State of U.P. v. Doon Udhyog (P) Ltd.18 and State of U.P. v. Hart Ram19, and held as under:
"[9] Otherwise also, the statutory benefit of the Repealing Act is also available to the landholder-respondent in the fact-situation of the matter, as the taking of the "possession" in the present case was neither de jure nor de facto. The term "possession" as per sections 3 and 4 of the Repealing Act and section 10(6) of the U.L.C.R. Act means and implies the lawful "possession" after "due compliance of the statutory provisions". In State of U.P. v. Doon Udhyog (P) Ltd., 1999 4 AWC 3324, a Division Bench of this Court has held that where possession has been taken, its legality is to be decided on merits. Similarly, another Division Bench of this Court in State of U.P. v. Hart Ram, 2005 60 AllLR 535, has held that "in case possession is purported to be taken under section 10(6) of the Act, still Court is required to examine whether 'taking of such possession' is valid or invalidated on any of the considerations in law. If Court finds that one or more grounds exist which show that the process of possession, though claimed under section 10(5) or 10(6) of the Act is unlawful or vitiated in law, then such possession will have no recognition in law and it will have to be ignored and treated as of no legal consequence"..."
In State of U.P. Thru Secy Avas Avam Shahri Niyojan v. Ruknuddin and others20 the issue whether the possession had been taken from the tenure holder complying with the provisions of Section 10(5) and 10(6) of the Act, 1976 came to be considered by this Court. After perusing the original record the Court has held as under:
"We having gone through the records and we find that the possession memo which was prepared on 22/23.03.1998, no where indicates as to how possession was taken and what is the name of witness in whose presence such possession was taken. There is no name indicated in the writ petition filed by the State or even in the rejoinder affidavit. The name of the Lekhpal in whose presence the alleged possession is said to have been taken has not been mentioned and the printed proforma of the possession memo is blank to that effect. The question as to how the factum of taking actual physical possession has been established by the State was discussed by a Division Bench in the case of Mohd. Islam & 3 Others Vs. State of U.P. in Writ Petition No. 15864 of 2015 decided on 4th December, 2017. The said decision was quoted with approval by a Division Bench in the case of Rati Ram Vs. State of U.P. & Others 2018 (4) ALJ 338 paragraph no. 8 as follows:-
"8. The 'Dakhalnama' a certified copy whereof has been produced before us does not even bear the signatures of any attesting witness. We find this to be a lapse and patent illegality the benefit whereof has to be given to the land holder in view of the Division Bench judgment in the case of Mohd. Islam and 3 others v. State of U.P. and 2 others, Writ Petition No. 15864 of 2015 decided on 4th December, 2017. It was also a case of District-Saharanpur. We extract paragraph Nos. 44 to 47 of the said judgment which are as under:
"44. Since, in the present case, neither factum of taking actual physical possession by Competent Authority under Ceiling Act has been fortified by placing any document nor factum of possession of Development Authority at any point of time has been shown, therefore, argument advanced by learned Standing Counsel on the basis of State of Assam (supra) will not help.
45. Viewed from the above exposition of law we find in the present case that no such exercise of issuing notice under Section 10(6) of the Act, 1976 and thereafter execution of memo on the spot had taken place which is mandatory for ceiling authorities as admittedly the original tenure-holder and then his successors had never voluntarily surrendered the possession of land. In the absence of voluntary surrender of possession of surplus land, the authorities were required to proceed with forcible possession. The document of possession memo would not by itself evidence the actual taking of possession unless it is witnessed by two independent persons acknowledging the act of forcible possession. As discussed above in the earlier part of this judgment we are not able to accept the alleged possession memo worth calling a document as such in the absence of certain requisites, nor does it bear the details of witnesses who signed the document. It bears mainly signatures of Chackbandi Lekhpal, a person taking possession and then the document has been directed to be kept on file. This is no way of taking forcible possession nor, a document worth calling possession memo. A mere issuance of notification under Section 10(3) and notice under Section 10(5) regarding delivery of possession does not amount to actual delivery of possession of land more especially in the face of the fact that the tenureholder had in fact not voluntarily made surrender of possession of surplus land and no proceeding under Section 10(6) had taken place.
46. Since, we have held that possession memo dated 20.06.1993 is not a possession memo and is a void document for want of necessary compliance under Section 10(6) of the Act, 1976, the petitioners are entitled to the benefit under Section 4 of the Repeal Act, 1999 that came into force w.e.f. 20.03.1999.
47. We may also place on record that respondents claim that possession of land in question was handed over to Saharanpur Development Authority pursuant to Government Order dated 29.12.1984 but here also we find that no material has been placed on record to show that any such actual physical possession was handed over to Saharanpur Development Authority and the said authority is in de facto possession of land in dispute. Except bare averment made in the counter-affidavit respondent have not chosen to place anything on record to support the stand that de facto possession over land in dispute is that of Saharanpur Development Authority. Therefore even this stand has no legs to stand and is rejected."
A Division Bench of this Court in Ram Chandra Pandey (supra) has held thus:
"34. In the background of the facts of this case and the submissions made by the learned counsel for the parties as well as on perusal of the record produced by the learned Standing Counsel, especially the document by which possession of the land is said to have been taken from the grand father of the petitioner late, Dhani Ram, we are not satisfied that actual physical possession of the plots in question was ever taken by the State Government. From the record, we find that the memo of possession prepared in the present case is nothing but a mere noting of three officials of the State Government made on 2.4.1992, which is also not on the proper format and appears to have been prepared by the State officials in their office, and as such no authenticity can be attached to the same. On such memorandum, there is no signature of the grand father of the petitioner (late Dhani Ram) or any independent person to show that actual physical possession had been delivered to the State Government. More so, the name of late Dhani Ram continued in the revenue record till his death in the year 1995 and thereafter the name of the petitioner was admittedly recorded in the Khasra and Khatauni in the year 1996, which continued so till the passing of the exparte order in 2004, where after also the land revenue was being accepted from the petitioner."
In Ehsan (supra) a Division Bench of this Court has held in the following terms:
"...Even otherwise the document which has been filed as Annexure No. 1 to the counter affidavit is a report and not the actual possession memo. It also records that Bashir, who is the father of the petitioner refused to sign on the proceedings while possession was taken and the petitioner was not present at the time. It is, therefore, clear that this was a sheer paper transaction prepared before the expiry of the statutory period of 30 days and if the petitioner had not handed over voluntary possession, the dispossession could have been possible only by complying with the provisions of section 10(6) of 1970 Act. No such procedure has been followed nor any such evidence is on record.
*** *** *** The law relating to taking over possession and the manner of preparation of possession memo has been explained in various judgements. Reference be had to in all such matters where the State relies on the judgment of the Apex Court in the case of State of Assam Vs. Bhaskar Jyoti Sharma & Others 2015 (5) SCC 321 that has been followed by a Division Bench of this Court in the case of Shiv Ram Singh Vs. State of U.P. & Others 2015 (5) AWC 4918. In the instant case the aforesaid judgments would not apply in view of the peculiar facts of this case as discussed herein. To the contrary since taking over of possession by the State has not been established in the present case, the issue stands covered by the decision of the Apex Court in the case of State of U.P. Vs. Hari Ram 2013 (4) SCC 280 and the decision in the case of Raghbir Singh Sehrawat Vs. State of Haryana & Others 2012 (1) SCC 792 as well as the Division Bench judgment of this Court in the case of Yasin Vs. State of U.P. & Others 2014 (4) ADJ 305. The latest Division Bench of this Court with which we find ourselves in complete agreement with is in the case of Lalji Vs. State of U.P. & 2 Others 2018 (5) ADJ 541 that has been delivered after taking into account the judgment of the Apex Court in the case of Bhasker Jyoti Sharma (supra).
Pertinently, in respect of the Saharanpur Development Authority the same issue was considered in the case of Rati Ram v. State of U.P. and others21, wherein the Division Bench of this Court has held as under:
"8. The 'Dakhalnama' a certified copy whereof has been produced before us does not even bear the signatures of any attesting witness. We find this to be a lapse and patent illegality the benefit whereof has to be given to the land holder in view of the Division Bench judgment in the case of Mohd. Islam and 3 others v. State of U.P. and 2 others, Writ Petition No. 15864 of 2015 decided on 4th December, 2017. It was also a case of District- Saharanpur. We extract paragraph Nos. 44 to 47 of the said judgment which are as under:
"44. Since, in the present case, neither factum of taking actual physical possession by Competent Authority under Ceiling Act has been fortified by placing any document nor factum of possession of Development Authority at any point of time has been shown, therefore, argument advanced by learned Standing Counsel on the basis of State of Assam (supra) will not help.
45. Viewed from the above exposition of law we find in the present case that no such exercise of issuing notice under Section 10(6) of the Act, 1976 and thereafter execution of memo on the spot had taken place which is mandatory for ceiling authorities as admittedly the original tenure-holder and then his successors had never voluntarily surrendered the possession of land. In the absence of voluntary surrender of possession of surplus land, the authorities were required to proceed with forcible possession. The document of possession memo would not by itself evidence the actual taking of possession unless it is witnessed by two independent persons acknowledging the act of forcible possession. As discussed above in the earlier part of this. judgment we are not able to accept the alleged possession memo worth calling a document as such in the absence of certain requisites, nor does it bear the details of witnesses who signed the document. It bears mainly signatures of Chackbandi Lekhpal, a person taking possession and then the document has been directed to be kept on file. This is no way of taking forcible possession nor, a document worth calling possession memo. A mere issuance of notification under Section 10(3) and notice under Section 10(5) regarding delivery of possession does not amount to actual delivery of possession of land more especially in the face of the fact that the tenureholder had in fact not voluntarily made surrender of possession of surplus land and no proceeding under Section 10(6) had taken place.
46. Since, we have held that possession memo dated 20.06.1993 is not a possession memo and is a void document for want of necessary compliance under Section 10(6) of the Act, 1976, the petitioners are entitled to the benefit under Section 4 of the Repeal Act, 1999 that came into force w.e.f. 20.03.1999.
47. We may also place on record that respondents claim that possession of land in question was handed over to Saharanpur Development Authority pursuant to Government Order dated 29.12.1984 but here also we find that no material has been placed on record to show that any such actual physical possession was handed over to Saharanpur Development Authority and the said authority is in de facto possession of land in dispute. Except bare averment made in the counter-affidavit respondent have not chosen to place anything on record to support the stand that de facto possession over land in dispute is that of Saharanpur Development Authority. Therefore even this stand has no legs to stand and is rejected."
It is apposite to mention that after the judgment of the Supreme Court in Hari Ram (supra), the State Government issued a Government Order dated 29th September, 2015 for compliance of the judgement and extensively quoted the relevant parts of the judgement, which deals with possession. It is mentioned that if after issuance of the notice under Section 10(5) of the Act, 1976 possession could not be taken but the owner has taken the compensation under Section 11 of the Act, 1976, in that event if owner returns the compensation, the land shall not be returned unless the amount of the compensation is not returned. The said Government order reads as under:
"la[;k & 2228@vkB&6&15&124 ;wlh@13 izs"kd] iu/kkjh ;kno lfpo] mRrj izns'k 'kkluA lsok esa] ftykf/kdkjh] xksj[kiqj] okjk.klh] bykgkckn] y[kuÅ] dkuiqj vkxjk] esjB] eqjknkckn] vyhsx<] cjsyh] lgkjuiqjA vkokl ,oa 'kgjh fu;kstu vuqHkkx&6 y[kuÅ% fnukad 29 flrEcj 2015 fo"k;& uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e] 1999 rrdze eas fuxZr 'kklukns'k rFkk ek0 mPpre U;k;ky; ds fu.kZ; fnukad 11-03-2013 ds lEcU/k easaA &&&&&& egksn;] mi;qDZr fo"k; ij eq>s ;g dgus dk funsZ'k gqvk gS fd Hkkjr ljdkj ds vf/kfu;e la[;k&15@1999 fnukad 18-03-1999 }kjk uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ vf/kfu;e 1976 dks fujflr djrs gq, uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e 1999 izk[;kfir fd;k x;k ftlds dze esa 'kklukns'k la[;k& 502@9& u0 Hkw0&99&21;w0lh0@99] fnukad 31-03-1999 }kjk mDr fujlu vf/kfu;e dks mRrj izns'k jkT; esa vaxhd`r fd;k x;kA fujlu vf/kfu;e 1999 dh /kkjk&3 esa ;g izkfo/kku gS fd ewy vf/kfu;e dk fujlu fuEufyf[kr dks izHkkfor ugha djsxk& ¼1½ ¼d½ /kkjk&10 dh mi/kkjk& ¼3½ ds v/khu ,slh fjDr Hkwfe dk fufgr gksuk] ftldk dCtk jkT; ljdkj ;k jkT; ljdkj }kjk bl fufeRr lE;d :i ls vf/kd'rd fdlh O;fDr ;k l{ke izkf/kdkjh us ys fy;k gSA ¼[k½ /kkjk& 20 dh mi/kkjk& ¼1½ ds v/khu NwV nsus laca/kh fdlh vkns'k ;k mlds v/khu dh x;h fdlh dk;Zokgh dh fdlh U;k;ky; ds fdlh fu.kZ; esa mlds foL) fdlh ckr ds gksrs gq, Hkh fof/kekU;rk% ¼x½ /kkjk& 20 dh mi/kkjk& ¼1½ ds v/khu iznku dh x;h NwV dh 'krZ ds :i es jkT; ljdkj dks fd;k x;k dksbZ lank;% ¼2½ tgka& ¼d½ ewy vf/kfu;e dh /kkjk&10 dh mi/kkjk ¼3½ ds v/khu fdlh Hkwfe dks jkT; ljdkj esa fufgr gksuk ekuh x;h gS fdUrq ftldk dCtk jkT; ljdkj ;k jkT; ljdkj }kjk bl fufeRr lE;d :i ls izkf/kd`r fdlh O;fDr ;k l{ke izkf/kdkjh }kjk ugh fy;k x;k % vkSj ¼x½ ,slh fdlh Hkwfe ds ckcr ftlds fy, jkT; ljdkj }kjk fdlh jde dk lank; dj fn;k x;k gS rc rd izR;kofrZr ugh dh tk; vkSj tc rd fd jkT; ljdkj dks lank; dh x;h jde dk ;fn dksbZ gks] izfrnk; ugh dj fn;k tkrkA mDr ds dze esa 'kklukns'k la[;k&777@9u0Hkw0&135 ;w0lh0@99 fnukad 09-02-2000] 'kklukns'k la[;k&1623@ 9&u0Hkw0&2000 fnukad 09-08-2000 ,oa 'kklukns'k la[;k& 190@9&vk&6&2001 fnukad 24-01-2001 fuxZr fd;s x;s ftles eq[; :i ls ;g O;oLFkk dh xbZ fd ewy vf/kfu;e /kkjk &8 ¼4½ ds vUrxZr tks Hkwfe fjDr ?kksf"kr dh xbZ Fkh vkSj /kkjk&10 ¼3½ ds vUrxZr jkT; esa fufgr gks pqdh Fkh ,oa /kkjk&10 ¼5½ dh dk;Zokgh dk vkns'k gks pqdk Fkk ijUrq bl Hkwfe ij jkT; ljdkj dk dCtk izkIr ugh gks ldk Fkk] ,slh Hkwfe ds lEcU/k es ewy Hkw/kkjd dks vnk dh xbZ /kujkf'k Hkw/kkjd }kjk okil djus ij Hkwfe ewy Hkw/kkjd dks izR;kofrZr dh tk ldrh gS fdUrq vnk dh xbZ /kujkf'k Hkw& /kkjd }kjk okil u djus dh n'kk esa Hkwfe ij dCtk fd;s tkus ds lEcU/k es fof/k vuqlkj vfxze dk;Zokgh vey es yk;h tk;A ;g Hkh O;oLFkk dh xbZ fd ftl Hkwfe ds lEcU/k esa /kkjk&10 ¼5½ dh dk;Zokgh ds mijkUr /kkjk&10 ¼6½ dh dk;Zokgh iwoZ gks pqdh gS vkSj Hkwfe ij jkT; ljdkj }kjk dCtk fy;k tk pqdk gS og ljIyl Hkwfe vfUre :i ls jkT; ljdkj esa fufgr ekuh tk;sxhA 3- uxj Hkwfe lhekjksi.k& xksj[kiqj] okjk.klh] bykgkckn] y[kuÅ] dkuiqj] vkxjk] esjB] eqjknkckn] vyhsx<] cjsyh] lgkjuiqj esa yfEcr vcZu lhfyax izdj.kksa dk leqfpr :i ls fuLrkj.k us gksus dh fLFkfr es Hkw&/kkjdksa@okfn;ksa }kjk ek0 mPp U;k;ky; esa vf/kd la[;k eas fjV ;kfpdk;as ;ksftr dh tk jgh gSA uxj cLrh dk;kZy;ksa }kjk fjV ;kfpdkvksa eas foHkkxh; i{k le;kUrxZr lk{;kas lfgr izcyrk ls izLrqr u fd;s tkus ds dkj.k ek0 U;k;ky; }kjk ikfjr vkns'kksa ds dze esa 'kklu dks vleatliw.kZ fLFkfr dk lkeuk djuk iM+ jgk gSA 4- vcZu lhfyax ds vU; izdj.k esa jkT; ljdkj }kjk ek0 mPppe U;k;ky; ubZ fnYyh esa fo'ks"k vuqefr ;kfpdk la[;k&12960@2008 mRrj izns'k jkT; cuke gjhjke ;ksftr dh x;hA dkykUrj es vU; tuinksa ds vcZu lhfyax ls lacf/kr izdj.kksa es ;ksftr fo'ks"k vuqefr ;kfpdk;sa mDr fo'ks"k vuqefr ;kfpdk ls Dyc dh x;hA mDr fo'ks"k vuqefr ;kfpdk la[;k&12960@2008 rFkk mlls Dyc vU; fo'ks"k vuqefr ;kfpdkvksa esa ikfjr ek0 mPpre U;k;ky; ds fu.kZ; fnukad 11-03-2013 es vcZu lhfyax ls lacf/kr izdj.kksa es ekxZn'kZd fl)kUr izfrikfnr fd;s x;s gSaA fu.kZ; fnukad 11-03-2013 dk egRoiw.kZ ,oa fdz;kRed va'k fuEuor gS%& izLrj& 39 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 sub-section (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. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act.
izLrj&40 We, therefore, find no infirmity in the judgment of the High Court and the appeal is, accordingly dismissed so also the other appeals. No documents have been produced by the State to show that the respondents had been dispossessed before coming into force of the Repeal Act and hence, the respondents are entitled to get the benefit of Section 3 of the Repeal Act. However, there will be no order as to cost.
5- uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e] 1999 esa fofgr izkfo/kku rFkk rRdze esa fuxZr 'kklukns'k fnukad 09-02-2000] 'kklukns'k fnukad 09-08-2000 ,oa 'kklukns'k fnukad 24-01-2001 Lor% Li"V gSA fo'ks"k vuqefr ;kfpdk la[;k&12960@2008 mRrj izns'k jkT; cuke gjhjke rFkk mlls Dyc vU; fo'ks"k vuqefr ;kfpdkvksa esa ikfjr ek0 mPpre U;k;ky; ds fu.kZ; fnukad 11-03-2013 esa mfYyf[kr fl)kUr@vkns'k Hkh Lor% Li"V gSaA 6- d`i;k uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e] 1999 rFkk mDr 'kklukns'k fnukad 09-02-2000] 'kklukns'k fnukad 09-08-2000 ,oa 'kklukns'k fnukad 24-01-2001 esa fofgr O;oLFkk] fo'ks"k vuqefr ;kfpdk la[;k&12960@2008 mRrj izns'k jkT; cuke gjhjke esa ikfjr ek0 mPpre U;k;ky; ds fu.kZ; fnukad 11-03-2013 esa mfYyf[kr fl)kUrksa@vkns'kksa ds vkyksd esa yfEcr izdj.kksa es Legal ingredients ns[krs gq, vko';d dk;Zokgh dh tk;A Hkonh;
g0 viBuh;
¼iu/kkjh ;kno½ lfpo la[;k ,oa fnukad rnSoA izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"krA 1- funs'kd uxj Hkwfe lhekjksi.k] m0iz0 tokgj Hkou& y[kuÅ 2- l{ke izkf/kdkjh uxj Hkwfe lhekjksi.k xksj[kiqj] okjk.klh] bykgkckn] y[kuÅ] dkuiqj] vkxjk] esjB] eqjknkckn] vyhsx<] cjsyh] lgkjuiqjA 3- eq[; LFkk;h vf/koDrk ek0 mPp U;k;ky;] bykgkckn 4- xkMZ QkbZyA vkKk ls ¼dYyw izlkn f}osnh½ mi lfpoA"
From a perusal of the aforesaid Directions issued by the State Government in 1983 and the Government Order dated 29th September, 2015 it is evident that if after the notification under sub-section (3) of Section 10 of the Act, 1976 the land is vested in the State Government but the possession has not been taken by the State Government or an officer nominated by the State Government or the competent authority, then in that event the proceedings shall be lapsed. However, the compensation paid to the land owner shall be got refunded. It is also made clear that only in those cases where after the notice under Section 10(5) of the Act, 1976 the possession has been taken under Section 10(6), the surplus land shall be finally vested in the State. The aforesaid Government Order has also quoted Paragraphs- 39 and 40 of the judgment of Hari Ram (supra).
A Division Bench of this Court in Lalji (supra), after considering the judgment of the Supreme Court in Hari Ram (supra) and Bhaskar Jyoti Sarma (supra), has held as under:
"[29]. Faced with a situation where respondents could not place even an iota of evidence showing actual physical possession of disputed land by respondent, learned Standing Counsel sought to rely upon Supreme Court judgment in State of Assam Vs. Bhasker Jyoti Sharma & Ors. 2015 (5) SCC 321 and contended that irrespective of any defect in notice under Sections 10(5) or 10(6) of Act, 1976, if possession has been taken in any manner, Repeal Act 1999 will have no application.
*** *** *** [37]. We may also mention at this stage that except bare averment that disputed land was transferred to ADA by competent Authority, no material has been placed on record about transfer of possession to ADA and infact nothing has been placed on record even to show that de facto possession of land in dispute before or after Repeal Act, 1999 is with ADA. ADA has also not placed on record anything to show that land in dispute is in its actual physical possession and in absence thereof, we had no occasion to require petitioner to prove, how de facto possession of land in dispute came in the hands of ADA. With regard to possession of land in dispute, except bare averments, nothing has been placed on record. It appears that respondents were under impression that once notification under Section 10(3) has been issued, land in dispute vested in 'State' and thereafter, irrespective of fact whether actual physical possession is taken by respondents or not, land owner would cease to have any right and Repeal Act, 1999 will have no application though this assumption on the part of respondents, as we have already discussed, stood negated by Court in State Vs. Hari Ram."
Learned Standing Counsel has placed reliance on a judgment of the Supreme Court in the case of Bhaskar Jyoti Sarma (supra) and a Division Bench of this Court in Shiv Ram Singh (supra). Both the judgments have been considered by a Division Bench of this Court in the case of Mohammad Suaif and another v. State of U.P. and others22 and Lalji (supra).
In the case of Bhaskar Jyoti Sarma (supra) the land owner has not denied the fact that possession was taken from him by the State before enactment of the Repeal Act. In view of the admitted fact the Supreme Court refused to examine the matter that whether the possession was taken forcefully or illegally. Once possession was taken by the State and land vested in the State Government, the benefit of Section 4 of the Repeal Act shall not be applicable. Hence, the said case is distinguishable as in the present case the main issue raised by the petitioners is that they are still in physical possession and the State has never taken possession from them.
As regards the case of Shiv Ram Singh (supra), the petitioner therein had challenged the order passed by the District Magistrate holding that the possession of the land declared surplus has been taken on 25th June, 1993, much before Repeal Act came into force. Hence, it was found that he was not entitled to the benefit of the provisions of Section 3 (2) of the Repeal Act. In the said case, the notice under Section 10(1) was issued on 15th May, 1985, thereafter on 02nd June, 1986 a notification under Section 10(3) was issued and published in the official gazette, and on 25th February, 1987 a notice under Section 10(5) of the Act, 1976 was issued. The respondents-State had taken a stand that the possession was taken on 25th June, 1993 pursuant to the notice dated 25th February, 1987 i.e. prior to enforcement of the Repeal Act and in the revenue record the name of the State was mutated. The petitioner therein had earlier approached the Court by means of Writ Petition No. 47279 of 2002 claiming that he is still in possession over the land which was declared surplus, hence after the Repeal Act the possession cannot be taken over from him. The said writ petition was disposed of by this Court by issuing a direction upon the District Magistrate to consider his representation. The District Magistrate, after furnishing opportunity to the petitioner, by an order dated 10th May, 2007 held that the possession has already been taken on 25th June, 1983, hence the petitioner would not be entitled to the benefit of the Repeal Act. The petitioner challenged the said order of the District Magistrate after two years in July, 2009. In the meantime in the year 2008 the construction of a Sewage Treatment Plant (STP) for treating 210 MLD of sewage was commenced. The Jal Nigam, in whose favour the land was transferred, filed a counter affidavit in the said writ petition and took the stand that by the time the writ petition was filed, nearly 65% of the work had been completed at a cost of Rs.73 crores and the petitioner was fully aware of the said facts but he did not file the writ petition for two years. In the light of those peculiar facts the Court did not interfere. Moreover, the Court has also found that the procedure for taking possession was followed by the administration. The District Magistrate after affording opportunity to the petitioner has recorded a finding that the possession was taken on 25th June, 1993.
We have carefully gone through the judgment of Shiv Ram Singh (supra) and we find that the said judgment is distinguishable for the reasons recorded above.
Keeping in the mind the principle laid down by the Supreme Court and this Court, as indicated in the authorities referred herein-before, we find that in the counter affidavit the State has taken a very general and vague stand about the possession. In Paragraph-4 of the counter affidavit of the State the only averment made in this regard is that the process server personally served the notice under Section 10(5) of the Act, 1976 on 20th November, 1987. It is also averred therein that "It is further stated that after adopting all proceeding according to law on the aforesaid declared surplus land the possession of the State Government has been taken on 31.11.1987". It is not mentioned in the counter affidavit that the petitioners have given voluntary possession after receiving the notice under Section 10(5) of the Act, 1976. From the original record it was evident that there was no material to show that the petitioners have given voluntary possession to the State authorities after receiving the notice under Section 10(5). If they had not given the voluntary possession then the only course open to the authorities was to take forceful possession under Section 10(6) of the Act, 1976. There is no material on the record or averment made in the counter affidavit to show that the forceful possession was taken from the petitioners under Section 10(6) of the Act, 1976. In the counter affidavit filed on behalf of the State, the name of the officer, who has taken the possession, is not disclosed. However, in the counter affidavit filed by the Saharanpur Development Authority it is stated that the Tehsildar has taken the possession. As mentioned above, the only document which is on the record to indicate taking over the possession is a memo dated 31st November, 1987. The said date has been mentioned in several paragraphs of the counter affidavits of the State and the Saharanpur Development Authority. The said document does not inspire any confidence. There are only thirty days in the month of November. So, apparently 31st November is a wrong date. As held by the Supreme Court in Hari Ram (supra) and the directions issued by the State Government in the Directions, 1983 as well as the Government Order dated 29th September, 2015, we find that the possession has not been taken in terms of the Directions, 1983 and the Government Order. The Revenue Inspector and the Lekhpal are not authorized to take possession as held in a large number of cases mentioned above.
As regards the stand of the State that the possession has been handed over to the Saharanpur Development Authority, we find that except the memo of possession/ Dakhalnama, there is no other material to indicate that the possession was legally handed over to the Saharanpur Development Authority. Pertinently, in the Dakhalnama it is recorded that the land is agricultural. We find merit in the submission of the petitioners that agricultural land cannot be declared surplus. But this issue was not raised seriously, hence we are not recording any finding on this issue. In the counter affidavit filed by the Saharanpur Development Authority the alleged possession is stated to have been taken on 29th January, 2002 but no detail has been mentioned regarding the construction, which has been raised. As regards the claim of the respondents that possession of the land was handed over to the Saharanpur Development Authority, we find that the proceedings stood abated in terms of Section 4 of the Repeal Act, therefore, any subsequent transfer is non est. In addition to above, as discussed above, there is no material on the record to demonstrate that actual possession was handed over to the Saharanpur Development Authority except a Dakhalnama wherein the land has been shown to be agricultural land. The petitioners have brought on record the minutes of a meeting dated 18th August, 2008 of the district administration and the officials of the Saharanpur Development Authority, presided over by the District Magistrate. In the said meeting it was resolved to handover the surplus land declared under the urban ceiling to the development authority for construction of residential accommodation. In the said meeting it was resolved that the Saharanpur Development Authority shall take steps to obtain permission from the competent authority for conversion of land use. From the record it appears that before any construction started, the petitioners have obtained an interim order in the petition on 25th June, 2009. The said interim order is continuing for the last ten years. Record shows that neither the State nor the Saharanpur Development Authority has taken any step for early hearing of the matter. A general and vague statement has been made that the 'development authority is presently utilizing' the said land for development of the residential colony, wherein EWS houses are being constructed under the Manyawar Kanshiram Durbal Warg Awasiya Yojna. But except bald statement no other material is on the record to show that any construction has been made. In any view of the matter, if the possession has not been taken in terms of Sections 10(5) and 10(6) of the Act, 1976, the petitioners are entitled for the benefit under Sections 3 and 4 of the Repeal Act.
For all the reasons stated above, we find that the ceiling proceeding stood lapsed and the petitioners are entitled for the land in question which has been declared surplus. If the claim of the Saharanpur Development Authority that it has raised construction over the land in question is correct, it would be open to the petitioners to take recourse to such remedy which is available under the law.
With the aforesaid observations and directions, the writ petition is allowed.
No order as to costs.
Date: 20th August, 2019 SKT/-