Rajendra Kumar And Others vs State Of U.P. Thru' Its Secretary ...
2011 Latest Caselaw 6357 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 37
 

 
Case :- WRIT - C No. - 28166 of 2010
 

 
Petitioner :- Rajendra Kumar And Others
 
Respondent :- State Of U.P. Thru' Its Secretary Urban Land Ceiling & O.Rs
 
Petitioner Counsel :- Raj Karan Yadav
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Vineet Saran,J.

Hon'ble Ashok Pal Singh,J.

Heard Sri Raj Karan Yadav, learned counsel for the petitioner and Learned Standing Counsel appearing for the State-respondents and perused the record.

Pleadings have been exchanged and with the consent of learned counsel for the parties this petition is disposed of at the admission stage.

The brief facts of this case are that the land which belongs to Murguriya, the mother of petitioner no.3 and grand mother of petitioner nos. 1 and 2 is subject matter of the dispute. The relief sought in this writ petition is for mandamus directing the respondents not to disposses the petitioners from the disputed land and to abate all the proceedings under the Urban Land ( Ceiling & Regulation) Repeal Act, 1999.

Proceedings under the Ceiling Act were initiated against the said Smt. Murguirya but before possession of the said land could be taken from her, she died and thereafter no proceedings under Section 10(5) or under Section 10(6) of the said Act were taken and it is contended that despite the same the respondents are trying to take possession of the disputed land alleging it to have been declared surplus.

Learned counsel for the petitioner contends that after the enforcement of the Repeal Act w.e.f. 18.03.1999 all the proceedings would abate except those where possession has already been taken. The petitioners have specifically stated in paragraph 5 of the writ petition that possession from them has not been taken by the respondents and they are still in physical possession of the said land. A division Bench of this Court in the case of Ram Chandra Pandey Vs. State of U.P. 2010 (82) ALR 136 has held that mere symbolic possession would not amount to taking of actual physical possession and after the repeal of the Ceiling Act of 1976, the person from whom actual possession has not been taken would be entitled to the benefit of Sections 3 and 4 of the Repeal Act 1999. The averment that the actual physical possession of the land in question has not been taken from the petitioners has not been denied in the counter affidavit filed by the State-respondents. It has been merely stated in this regard that notice under Section 10(5) of the Act was issued in the present case.

We find from the record that the said notices were issued against the dead person as Smt. Murguriya had already died prior to the date of the notice.

Accordingly in view of the provisions of Sections 3 and 4 of the Repeal Act 1999 all the proceedings against the petitioner would stand abated. The respondents are directed not to disturb the possession of the petitioners over the land in dispute and the revenue record be corrected accordingly.

The writ petition succeeds and is accordingly allowed.

Order Date :- 7.12.2011

Abhishek Sri.

( Ashok Pal Singh,J.)                                     ( Vineet Saran,J.)