Allahabad High Court
Islam Sabir And Another vs State Of U.P. And 2 Others on 9 October, 2025
Author: Neeraj Tiwari
Bench: Neeraj Tiwari, Vivek Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:186296-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - C No. - 27945 of 2021
Islam Sabir And Another
.....Petitioner(s)
Versus
State Of U.P. And 2 Others
.....Respondent(s)
Counsel for Petitioner(s)
:
Ajay Kumar Singh, Ashish Kumar Singh
Counsel for Respondent(s)
:
C.S.C.
Court No. - 1
HON'BLE NEERAJ TIWARI, J.
HON'BLE VIVEK KUMAR SINGH, J.
1. Heard Sri Navin Sinha, learned Senior Counsel assisted by Sri Ashish Kumar Singh, learned counsel for the petitioners, and learned Standing Counsel for the respondents.
2. By means of the instant writ petition, the petitioners have prayed for the following reliefs:
"a. Issue a writ, order or direction in the nature of certiorari to call for the record and quash the order dated 04.11.2020 passed by Respondent No. 3, Competent Authority/Additional District Magistrate (City), Urban Ceiling, Bareilly.
b. Issue a writ, order or direction in the nature of mandamus commanding Respondent No. 3 to consider and issue the No Objection Certificate in light of the judgment and possession memo issued in Case No. 2074/103/82.
c. Issue a writ, order or direction in the nature of mandamus commanding the respondent authorities, particularly Respondent No. 3, to pass appropriate orders by issuing the No Objection Certificate in view of its own report in Ceiling Case No. 2074/103/82."
3. The brief facts of the case are that petitioner no.1, Islam Sabir, is the recorded Bhumidhar of Plot No. 410, situated in Village Mathurapur, Tehsil and District Bareilly, for more than 50 years, as evidenced by Khasra and Khatauni entries. In 2009, Plot Nos. 410 (area 0.455 hectare) and 412 were declared Abadi under Section 143 of the U.P.Z.A. & L.R. Act vide order dated 05.11.2009 passed by the Sub-Divisional Magistrate, Bareilly, which attained finality. Subsequently, Bharat Petroleum Corporation Limited issued an open-category advertisement dated 25.11.2018 for MS/HSD retail outlet dealership at a location between Paraskhera to Qila on Rampur Road, wherein petitioner no.2 applied, he was selected and Letter of Intent (hereinafter referred to as 'LOI') was issued on 22.03.2019. Thereafter, petitioner no.1 executed a registered lease deed dated 24/25.05.2019, leasing 1225 sq. meters of Plot No. 410 in favour of petitioner no.2 for 25 years. After issuance of the LOI, the petitioners obtained requisite departmental NOCs from the District Magistrate, Forest Department, District Supply Officer, Electricity Department, Public Works Department, Fire Department and others, including the U.P. Pollution Control Board and Bareilly Development Authority.
4. Subsequently, the Urban Ceiling Department raised an objection on 24.08.2019, alleging that Plot No. 410, area 1225 square meters, was ceiling-affected land, though the petitioners discovered that one Haseeb Miyan had wrongly included their land in his ceiling declaration, resulting in an order dated 29.03.1985 declaring certain plots surplus. It is further revealed that an area of 17,226.30 square meters was declared surplus and notified under Section 10(3) of Act No. 33 of 1976. However, the possession memo dated 18.01.1992 explicitly records that possession of Plot Nos. 410?414 could not be taken as they belong to petitioner no.1. The document dated 18.01.1992 clearly goes to show that the entire proceedings were initiated against one Haseeb Miyan, son of Hazi Maqsood Hussain, who is not even known to the petitioners, and in the said possession memo there is also a note which says that Plot Nos. 410 to 414 belong to Islam Sabir and therefore possession cannot be taken from him. At this stage, the petitioner, along with other relevant documents, approached the Additional District Magistrate (City), Bareilly, and provided him all documents in Ceiling Case No. 2074/103/82 including the possession memo, but respondent no.3 did not take any action. The petitioner, having no option, approached this Court by filing Writ Petition No. 40103 of 2019 with a prayer for a writ of mandamus commanding respondent no.3 to issue the No Objection Certificate in light of the judgment and possession memo issued in Case No. 2074/103/82 and further to pass appropriate orders by issuing the No Objection Certificate. The said writ petition was disposed of vide order dated 20.12.2019, directing respondent no.3 to take into account all the documents submitted by the petitioners and pass fresh orders. After the order of the Writ Court, respondent no.3 wrote a letter dated 30.12.2019 to the Principal Secretary, Housing and Urban Development, in which it is clearly mentioned, with reference to the possession memo dated 18.01.1992, that possession of Gata Nos. 410 to 414 is recorded in the name of Islam Sabir, son of Late Asfaq Ahmad (i.e. petitioner no.1), therefore, possession could not be taken, and possession was taken only over the remaining numbers, i.e. 917, 920, 921, 922, and 918. It is also mentioned in the letter that in the Khatauni of Fasli Years 1383?1388 as well as 1424?1429, the name of Islam Sabir, son of Late Asfaq Ahmad, is endorsed.
5. In compliance with the order of the Writ Court dated 20.12.2019, he wrote another letter to the Under Secretary dated 10.01.2020 reiterating the facts mentioned in the earlier letter dated 30.12.2019 addressed to the Principal Secretary, Housing and Urban Development.
6. Now, in the light of the report submitted by respondent no.3, it is apparently clear that the land in question has never been taken into possession by the State authorities and further, from the counter affidavit, it is also apparent that ceiling proceedings were never initiated against the petitioner and the same were against one Haseeb Miyan, who has no concern with the petitioner. He next submitted that the Urban Land (Ceiling and Regulation) Act, 1976 had been repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999, and Clause 3 of the Repeal Act provides that 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 by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority. In the present case, there is no dispute on the fact that, in light of the report submitted by respondent no.3, the land in question has never been taken into possession by the said authorities, therefore, after repeal of the Act, the said land can never be taken into possession. Not only this, for declaring any land surplus, a notice is required to be issued, and in the present case, no notice has been issued to the petitioner, whether it was issued to one Haseeb Miyan, who for no reason had included the land of the petitioner also in his declaration under Section 10(3) of Act No. 33 of 1976.
7. After service of the order of the High Court dated 20.12.2019, the impugned order has been passed by respondent no.3 with very vague reasons, admitting the fact that the name of Islam Sabir was endorsed in 1974 for Gata Nos. 410?414 under category 9, and prior to that it was in the name of Smt. Sarla Devi, wife of Sri Satya Prakash, resident of Calcutta. Later on, in the year 1979, under the orders of the S.D.O., the name of Islam Sabir was endorsed as *Bhumidhar*, but the records were weeded out, therefore, it is not clear on what basis his name was endorsed. In the last, it is further stated that now the land is vested in the State Government, therefore, there is no occasion to issue the No Objection Certificate. Learned Senior Counsel further submitted that incidentally, the letters dated 30.12.2019 and 22.01.2020 were written by Mahendra Kumar Singh, Competent Authority/ADM (City), Bareilly, and further, the impugned order has also been passed by the same officer, Mahendra Kumar Singh, in the same capacity. It is surprising that in his letters dated 30.12.2019 as well as 22.01.2020, he has clearly written that Gata Nos. 410?414 are endorsed in the revenue records in the name of Islam Sabir and further that possession of the said land had never been taken, and now in the impugned order, the same officer is saying that the land is vested with the State Government. Therefore, the order impugned is contrary to record, ex-facie bad, and is liable to be set aside.
8. Learned Standing Counsel opposed the writ petition and submitted that under Section 10(5), notice was issued for voluntarily handing over the possession on 01.10.1991 to the original tenure holder, and ultimately, possession was taken on 18.01.1992 by the Tehsildar (Sadar) on behalf of the District Magistrate on the spot in the presence of witnesses.
9. Learned Standing Counsel further submitted that the name of the petitioner was wrongly endorsed in the revenue records, and even having excess land over and above the ceiling limit, he has not submitted any return, for which he is punishable for an offence as per Sections 18 and 38 of the Urban Land Ceiling Act, 1976. Therefore, there is no illegality in the impugned order, and the writ petition is liable to be dismissed.
10. We have considered the rival submissions made by the parties and perused the record.
11. Earlier, the petitioner had filed Writ Petition No. 40103 of 2019, which was disposed of vide order dated 20.12.2019, and the same is being quoted here:?
"Heard Sri Ashish Kumar Singh, learned counsel for the petitioners and learned Standing Counsel.
The petitioners are seeking a no-objection certificate for the purposes of establishment of a petrol-pump on land Khasra No.410 situate in Mathurapur, District-Bareilly. The petitioners have received clearance for the purpose practically from all the departments except for Urban Ceiling Department. It appears that the competent authority/ additional District Magistrate Nagar, has reservation in issuing no-objection certificate as the land is involved in proceedings under the Urban Ceiling Act. This is reflected from his letter dated 24.08.2019 addressed to the Executive Engineer, Bareilly Vikas Pradhikaran.
Sri Ashish Kumar Singh, learned counsel for the petitioners submit that part of the said land was incorrectly declared to be surplus in the hands of a third party but its possession was never taken over by the State as on verification it was found that it belong to some another person and not to the person whose land was declared to be surplus. In connection with this, the petitioner has submitted a copy of the possession memo dated 18.01.1992 wherein possession of the land declared to be surplus was taken over except plot no.410 and in connection thereto a note appended that the said plot is recorded in the name of a different person and it is not possible to take possession of it.
If the possession of the said land has not been taken, it will not vest in the State.
In view of the aforesaid facts and circumstances of the case, we dispose of the writ petition with a direction to the respondent no.3 to take into account all the documents submitted by the petitioners specially the above referred possession memo and then to pass a fresh order in accordance with law as to whether the petitioners are entitled to no-objection certificate or not.
It case, it is found that the land is not involved in any proceedings and the petitioners are entitled to no-objection certificate the same may be issued expeditiously. "
12. From perusal of the order, it is apparently clear that prima facie the Court was satisfied that the possession memo dated 18.01.1992 shows that possession of land declared as surplus was taken over except Plot No. 410, and a note thereto is also appended. Relying upon that, the matter was remanded back for passing a fresh order. Pursuant thereto, respondent no.3 wrote two letters dated 30.12.2019 and 22.01.2020 to the State Government. The relevant parts are being quoted here:
"??.. ????????? ?????? 01.10.91 ?? ???? 10(5) ?? ????? ?????? ?? ???? ???? ?? ??????? ?????? 18.01.52 ?? ??? ???? ?? ????? ?????? ?? ???????? (???) ????? ?????? ?????????? ?? ????????? ?? ??? ??? ?????? ?? ??????? ??? ???? ?? ???? ?? ?????? ????????????? ?? ?? ?? ????? ?? ?? "???? ?????? 410 ?? 444 ?? ??????? ??? ?????? ????? ????? ????? ???? ?? ??? ????? ?? ??? ?? ?? ??????? ??? ???? ?? ????? ??????? ?? ?????? ????? ?? ?????? ??? ?? ???? ??? ????? ???????? 917 720 921 922. 918 ?? ??? ???? ????"
??.?????? ?????? 4 ?? ??????? ??? ???? ????? ?? ?? ??????? ?????? 18.01.1992 ?? ??? ??? ??????? ?????? ??? ???? ??? ?? ?? ???? ?????? 410 ?? 414 ?? ??????? ??? ?? ????? ????? ????? ???? ?? ??? ????? ??? ????? ???? ?? ?????? ?? ????? ???? ???? ?? ????? ??????? ??? ?????? ????? ?? ????? ??? ?? ???? ??? ??? ????? 917. 900. 921, 922, 918 ?? ??? ???? ????"
13. From perusal of both the letters, it is apparently clear that the land in dispute, i.e., Gata No. 410, has never been taken into possession by the State Government. Not only this, ceiling proceedings were initiated only against Haseeb Miyan, which also had reference to the plot of the petitioners. From the counter affidavit, nowhere it is demonstrated that at any point of time any notice was issued to petitioner no.1 under the Urban Land (Ceiling and Regulation) Act, 1976. Merely on the declaration made by Haseeb Miyan, the petitioner's land was also declared surplus, but as he was in possession and his name was endorsed in the revenue records, possession could not be taken by the State Government. Even otherwise, once possession is not taken by the State Government, in light of Section 3 of the Repeal Act, the petitioners are entitled for all purposes of the land. In the present case, there is no issue to return the land or restore the possession, and admittedly, on record, the land is still in possession of petitioner no.1. Therefore, the order dated 04.11.2020 is bad and liable to be set aside.
14. Accordingly, the petition is allowed, and a writ of certiorari is issued for setting aside the order dated 04.11.2020 passed by respondent no.3, Competent Authority/Additional District Magistrate (City), Urban Ceiling, Bareilly. A direction is issued to respondent no.3 to issue the No Objection Certificate forthwith, maximum within six weeks from the date of production of a certified copy of this order.
(Vivek Kumar Singh,J.) (Neeraj Tiwari,J.) October 9, 2025 pks