Allahabad High Court
Ram Singh And Others vs State Of U.P. Thru Secy. And Others on 22 May, 2013
Bench: Sheo Kumar Singh, Brijesh Kumar Srivastava-Ii
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved
Civil Misc. Writ Petition No. 8983 of 2012
Ram Singh and others ..... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 7786 of 2012
Ram Yagay and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 4749 of 2012
Ram Adhar .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 4747 of 2012
Panna Lal and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 4744 of 2012
Shiv Narain and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 4742 of 2012
Shitla Prasad .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 2097 of 2012
Usha Devi .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 72929 of 2011
Ram Khelawan .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 62127 of 2011
Raj Kumar and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 47694 of 2011
Shyam Lal and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 8978 of 2012
Ghulab .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 40109 of 2012
Babu Lal .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 26263 of 2010
Manoj Kumar .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 27034 of 2010
Ram Jeet .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 8982 of 2012
Ram Lakhan .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 45593 of 2010
Bhaiya Lal and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 39835 of 2010
Shiv Murat .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 27035 of 2010
Ram Ji .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 36079 of 2011
Jagdish and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 33230 of 2011
Shambhu Nath .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 23460 of 2011
Bhola and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 42419 of 2011
Ram Awtar .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 41660 of 2011
Smt. Jasee others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 41658 of 2011
Smt. Mahokha Devi .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 39114 of 2011
Jhallar .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 25048 of 2012
Om Prakash .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 29064 of 2012
Buddhu S/o Nadir Ali .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 29067 of 2012
Anandi Lal and another .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 29068 of 2012
Ram Adhar and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 29133 of 2012
Gulab .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 29339 of 2012
Ram Chandra & others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 37906 of 2012
Ashok Singh and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 44259 of 2012
Kedar Nath .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 44261 of 2012
Ruppan and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 44264 of 2012
Mewa Lal .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 53736 of 2012
Haji Mohd. Yaqoob .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 53737 of 2012
Helal Alam and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 53741 of 2012
Haji Mohd. Kasim .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 55877 of 2012
Ganga Ram .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 55880 of 2012
Shankar and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 55885 of 2012
Munni Lal and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 55886 of 2012
Vishram and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 57828 of 2012
Jitendra and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 63422 of 2012
Sri Ram and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 63424 of 2012
Salik Ram Singh .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 63425 of 2012
Basdev .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 63427 of 2012
Brahmdeen .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 67104 of 2012
Munni Lal .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 67106 of 2012
Sharda .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 67109 of 2012
Ram Bhawan .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 67110 of 2012
Suresh Chandra and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 67112 of 2012
Hans Raj .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 10150 of 2010
Balwant Singh and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 13847 of 2009
Shreekant .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 48469 of 2009
Suresh and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 32782 of 2011
Shankar Lal .... Petitioner
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 32787 of 2011
Shiv Murat and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 39212 of 2010
Mst. Sapna Devi and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 35429 of 2009
Nand Lal and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 34028 of 2009
Girja Raj Bhar and others .... Petitioners
Vs.
State of U.P. and others ....... Respondents
And
Civil Misc. Writ Petition No. 38257 of 2011
Ram Chandra ..... Petitioner
Vs.
State of U.P. and others ....... Respondents
Hon'ble Sheo Kumar Singh, J.
Hon'ble Brijesh Kumar Srivastava-II,J.
(Delivered by Hon'ble Sheo Kumar Singh, J.)
These are large number of writ petitions in which several points are there but more or less they are common and therefore, for convenience, as requested by both sides all are being taken together and are being decided by a common judgment.
Facts are not in much issue except formal and usual denial without any supportive material and thus the Court feels that by making cases in bunch covered by a particular point, all may be decided in one go.
All the writ petitioners challenges the interference by the District Administration in their rights to continue in peaceful possession on the pretext of the land having declared as surplus under The Urban Land (Ceiling and Regulation) Act, 1976.
We are to first notice the facts which are stated in all the petitions mainly to the same effect in different language, which can be summarised as under-
Petitioners are owner and in possession of the land in dispute. Although the land was declared as surplus but at no point of time actual physical possession was taken by the competent authority. In some of the cases proceedings/notice is said to have been given against the dead person and in some of the cases proceedings only upto issuance of notice under Section 10(5) of The Urban Land (Ceiling and Regulation) Act, 1976 herein after referred to as the Act remained and that too without any proper service on the land holder. In some of the cases notice is said to have been issued under Section 10(6) of the Act but it has not been served and in some of the cases for taking the actual physical possession there is no document on record. In some of the cases although Dhakhalnama is there but there is no detail of the witness i.e. father's name, address and in none of the cases competent authority is said to have taken possession. Lekhpal, Consolidation Officer and other alike authorities are not competent to take possession. In none of the cases there is any overt and positive action on the part of the respondents to display taking of the actual physical possession. Taking of possession in none of the cases being in accordance with law even if there is some entry in favour of the respondents that cannot be indicative of taking of actual physical possession.
Thus on the facts and totality of the situation emphasis is that petitioners continued and are continuing in actual physical possession over the land in dispute and the actual physical possession having not taken in accordance with law by the competent authority petitioners will continue with their rights and they will be entitled to get their name/entry restored in the revenue papers if that has been expunged.
It is in the aforesaid premises, we are to just refer relevant provisions of the Act then the decided cases on the points of this court and the recent judgment of the Apex Court in which more or less various aspects touched by this court has been confirmed.
In the beginning it will be useful to quote various sub. Clauses of Section 10 of the The Urban Land (Ceiling and Regular) Act, 1976, relevant for our purposes-
"10(3) At any time after the publication of the notification under sub-section (1), the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.
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.
At this stage, we are to quote Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1909-
3. Savings - (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 by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;
(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.
Submission is that if notice right from the start of proceedings or otherwise is against dead person then it will be nullity.
Submission is that if notice is issued only under Section 10(5) of the Act or otherwise it is not properly served on the land holder then it will be nullity.
It is then submitted that even if notice has been issued under Section 10(6) of the Act but it do not indicate the name of the witnesses and his parentage and his address then also it will be vitiated.
It is argued that even if possession is said to have been taken but there is no possession memo or even possession memo is there but if it do not contain complete detail of witnesses and possession taking authority then also it is vitiated.
Argument is that if possession is not shown to have been taken by the competent authority under the Act and in the light of Circular dated 9th February, 1977 then also it is vitiated.
Taking of possession is to be in accordance with law by an overt act and positive material is to be there and mere entry of possession will not be sufficient to establish taking of actual physical possession.
The observation as made by this court in case of State of U.P and another Vs. Nek Singh reported in 2010 (81) 456 is quoted below-
"On examination of the facts on record, it is crystal clear that the possession allegedly taken on 23.1.1986 was unlawful for plurality of reasons which are ? Firstly, the possession allegedly taken on 23.1.1986 was pursuant to the CA's order dt. 19.12.1985 u/s 10(5) which was addressed to deceased Dhan Singh and, therefore, it was nullity and non est factum having no legal consequence and the possession taken on the basis was also void."
In another decision given in case of Ram Chandra Vs. State of U.P. and others reported in 2010 (81) ALR 215 following observations were made-
"There is specific allegation in the writ petition that proceedings either under Section 10(5) or under Section 10(6) of the Act was never taken. In the counter affidavit this specific allegation has not been denied and it is stated that notice under Section 10(5) of the Act was issued. From the record it appears that the notice under Section 10(5) of the Act was issued against a dead person as the father of the petitioner had already died prior to 26th September 1996. Thus, in view of the decision of this Court rendered in the case of State of U.P. vs. Hari Ram & others [2005 (60) ALR 535], all proceedings would abate.
In another decision given in case of Smt. Shanti Devi Vs. State of U.P. and others reported in 2010 (81) ALR 85 following observations were made-
"The issue can be examined from another angle. Learned Standing counsel does not dispute that there is no other provision for taking of possession under the Act except the power provided under Section 10(5) and 10(6). Admittedly, the very first step of taking over possession was taken through a notice under Section 10(5) dated 26.6.1999 which was issued in the name of the land holder. The fact that the land holder died on 4.3.1996 has not been denied. Thus, even the notice under Section 10(5) was void and would not give any right or power to the respondents to seek or take over possession of the disputed land. "
In another decision given in case of Jai Prakash Vs. State of U.P. and others reported in 2010 (81) ALR 216 following observations were made-
"It is also not denied that the original land holder died on 26.7.1998 and therefore even that notice was issued against a dead person. A Division Bench of this Court in the case of State of U.P. Vs. Hari Ram and others [2005 (60) A.L.R.535] has already held that where possession is not taken before the Repeal Act in accordance to law, all proceedings would abate and land would stand restored to the land holders. ".
It has been held in the decision given by this court in case of Mahaveer Vs. State of U.P. and others reported in 2013(118) RD 306, as given below-
6. A counter affidavit has been filed by the State in which it is pleaded that under Section 10 (5) of the Act a notice was issued on 12.1.1998 for taking possession. However, there is no averment in the counter affidavit as regards service of notice or that any proceedings under Section 10 (6) of the Act was undertaken. Learned standing counsel has produced the original record before us, which contains the copy of the notice dated 12.1.1998 under Section 10 (5) of the Act. However, neither there is any material to indicate that the said notice was served upon the petitioner, nor any material to indicate that the possession was handed over to the State by the petitioner, or any proceedings under Section 10 (6) of the Act were undertaken.
7.Learned counsel for the petitioner has rightly relied upon the judgment of Apex Court in Vinayak Kashinath Shilkar v. Deputy Collector and Competent Authority and others, 2012 (2) AWC 2123 (SC) and a Division Bench judgment of this Court in Chandrma v. State of U.P. and others, 2011 (5) ADJ 638 (DB). In Chandrma (supra) this Court has laid down that there being no proof of taking of physical possession of the surplus land in accordance with the procedure prescribed, the petitioner was entitled for issue of a writ of mandamus. It is useful to quote paragraphs 13 to 16 as under: -
"13. In this case as found above from the pleadings there is no assertion by the State, that the possession was actually handed over by petitioner's grand father in pursuance to the notice under Section 10 (5) of the Act, or that any proceedings were taken under Section 10 (6) of the Act for taking over possession. There are no pleadings of service of the notice under Section 10 (5) and preparation of Dakhalnama (possession memo) and the entries in Form No. C.L.C. III (Register for land of which possession has been taken under Section 10 (5) or 10 (6)), in proof of taking over physical possession of the surplus land.
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 under Section 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."
The observation as made by this court in case of Babu Chand Vs. State of U.P and another reported in 2009 (75) ALR 873 is quoted below-
"Possession on paper is a symbolic possession and word "possession' used in Clause (a) of sub-section (2) of Section 3 of the Act mean actual physical possession and not the symbolic possession."
The observation as made by the Apex court in case of Vinayak Kashinath Shilkar Vs. Dy. Collector and Competent Authority and another reported in 2012(2) AWC 2123 is quoted below-
"It is clear from the above provisions that where the possession of the vacant land has not been taken over by the State Government or by any person duly authorized by the State Government in this behalf or by the Competent Authority, the proceedings under the Act would not survive. Mere vesting of the vacant land with the State Government by operation of law without actual possession is not sufficient for operation of Section 3(1) (a) of the Act."
The observation as made by this court Smt. Prem Kumari Agarwal Vs. State of U.P. and others reported in 2012(90) ALR 818 is quoted below-
"There is nothing on record to show that the State Government is in actual physical possession of the surplus land except alleging that the possession has been taken. The counter affidavit is silent as to whether the possession has been taken actually on the spot or the State Government is in constructive possession. The petitioner having been in possession of the unpartitioned land in question being a co-sharer, no actual possession could possibly be taken without there being any partition. It is not the case of the respondent that there has been a mutual partition amongst the co-sharers, as also with the State Government. At the most it can be inferred that a constructive possession was taken by the State Government. "
The observation as made by this Court in case of Chandrama Vs State of U.P. and others reported in 2011(5) ADJ 638 is hereby quoted-
"Learned counsel for the petitioner 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. & ors JT 2000 (3) SC 391; Kailash and another vs. State of UP and ors 2005 (61) ALR 383; State of UP vs. Devendra Nath & another Civil Misc. Writ petition No. 76070 of 2005 decided on 15.12.2005; Babu Ram and others vs. State of UP and others 2009 (75) ALR 873; Ram Chandra Pandey vs. State of UP and others 2010 (82) ALR 136 and M/s Star Paper Mills Ltd. vs. State of UP and others 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 under Section 10 (5) and 10 (6) of the Act, and there is proof of taking over possession, the proceedings will abate under Section 3 of the Repeal Act, 1999.
In this case as found above from the pleadings there is no assertion by the State, that the possession was actually handed over by petitioner's grand father in pursuance to the notice under Section 10 (5) of the Act, or that any proceedings were taken under Section 10 (6) of the Act for taking over possession. There are no pleadings of service of the notice under Section 10 (5) and preparation of Dakhalnama (possession memo) and the entries in Form No. C.L.C. III (Register for land of which possession has been taken under Section 10 (5) or 10 (6)), in proof of taking over physical possession of the surplus land."
The observation as made by this Court in case of Kailash Vs State of U.P. and another reported in 2005(61) ALR 873 is hereby quoted-
"In an unreported judgement when State wanted a clarification in this regard in Civil Misc. Writ Petition No. 47369 of 2000 (State of U.P. Through the Competent Authority and another Vs. Hari Ram and others) one of our Division Bench held as follows:
".......an illegal act is not recognized in law and has to be ignored unless specifically required under statute to be reckoned with. Secondly, possession of surplus land, on notice given under section 10 (5) of the Act is to be surrendered by the landowner voluntarily in pursuance to said notice. If the landowner does not surrender possession in pursuance to the aforesaid notice, 'the Act' contemplates taking possession by force and coercing the landowner under section 10 (6) of the Act. If possession is taken in an extraordinary manner (process not recognized in law) i.e. without resorting to the provisions contemplated under section 10 (5) or Section 10 (6) of the Act, then possession will be irrelevant and of no consequence so far as the applicability of the Repeal Act is concerned. The Repeal Act shall have no effect on the Principal Act if possession of surplus land was not taken as contemplated in the Principal Act. Repeal Act, clearly talks possession being taken under section 10 (5) or 10 (6) of the Act. It is a statutory obligation on the Competent Authority or State to take possession as permitted in law. It is to be appreciated 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. The possession envisaged under section 3 of the Repeal Act is de facto and not de jure only."
The respondents further wanted to say that the land has been mutated in their name, therefore, the same can not be said to be land of the petitioners. We are all aware that mutation can not give the title. Therefore, mere mutation can not help the State for saying that the land is their actual physical possession. Even the Division Bench of our High Court in the earlier unreported judgement held as follows:
"Mere 'mutation' of entry in favour of State/ other persons in revenue records, is irrelevant/ inconsequential so far as the applicability of section 3 of Repeal Act is concerned."
The observation as made in case of Ram Chandra Pandey Vs. State of U.P. reported in 2010(82) ALR, 136 is hereby quoted-
''From the perusal of provisions contained under Sub section (5) and (6) of Section 10 read with Section 3 and 4 of the Repeal Act 1999 and directions with regard to the procedure for taking over the possession, it transpires that after the land is vested under Sub section (3) of Section 10 of the Principal Act, the Competent Authority is obliged to issue notice in writing, ordering any person who may be in possession of such vacant land to surrender or deliver the 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 notice and, 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 to be taken to the concerned State Government or to any person duly authorised by such State Government in this behalf, may for that purpose use such force as may be necessary. Under the Directions of 1983 (supra ), various forms of notices have been prescribed. Form U.L.C.-II is meant for notice under section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976. Apart from the format of the notice, the Competent Authority is required to forward a copy of the same 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 and intimation be given to the undersigned along with copy of certificate to verify.
With regard to the taking over the possession of the surplus land, as we have already noticed, under the Act there is no specific provision or mode prescribed for taking over possession except procedure as contained under Sub Sections (5) and (6) of Section 10 of the Parent Act and direction issued in the year 1983. Therefore, we take shelter of few judicial pronouncements where this aspect of the matter has been dealt with in the cases of Land Acquisition Act as well as Urban Land Ceiling Act.
In Balmokand Khatri Educational and Industrial Trust v. State of Punjab,(1996) 4 SCC 212: ( AIR 1996 SC 1239), it was held that:
"It is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the punchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto the retention of possession would tantamount only to be illegal or unlawful possession.
Same view was reiterated in State of Tamil Nadu v. Mahalakshmi Ammal, ( 1996) 7 SCC 269; (AIR 1996 SC 866) and Tamil Nadu Housing Board v. A.Vishwam, (1996)8 SCC 259; (AIR 1996 SC 3377).
In Balwant Narain Bhagde (AIR 1975 SC 1767), possession was meant as 'possession on the spot' and not 'symbolical' one.
This view has also been taken by this Court in the case Chabi Nath Vs State of U.P., 2005 (59) ALR. 413 and Dr.(Smt. Raj Kumari Mehrotra Vs State of U.P.,2009 (1) ADJ 583.
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 ex-parte order in 2004, where after also the land revenue was being accepted from the petitioner. "
The observation as made in case of Dr. Raj Kumari Mehrotra Vs. State of U.P. and others reported in 2009(1) ADJ 583 is hereby quoted-
"From the records that have been produced before us, we do not find any transaction between the authority and the Allahabad Development Authority of taking possession. There is nothing on record to indicate, that after the land holder filed his objection on 30.11.1998 clearly denying taking over possession or action having taken under Section 10(6) of the Act 1976, the possession was taken by the authorities. Apart from this the fact that the physical possession had not been taken over, stood fully corroborated by the admission of the District Magistrate in the order dated 15.7.2004 Annexure 13 to the writ petition. The admission of the District Magistrate in the aforesaid letter about the possession being retained by the land holder has not been successfully denied in the counter affidavit. The only denial is that the said letter was sent by the Addl. District Magistrate and not the competent authority, Urban Ceiling Land . Such an explanation cannot deny the factum of the possession being retained by the tenure holder, inasmuch as the said letter dated 15.07.2004 admits that possession was not taken over by the competent authority in no uncertain terms. It is the trite law that admission is the best piece of evidence."
With regard to the taking of the possession over the surplus land, as we have already noticed, under the Act there is no specific provision or mode prescribed for taking over possession except procedure as contained under Sub Sections (5) and (6) of Section 10 of the Parent Act and direction issued in the year 1983. Therefore, we take shelter of few judicial pronouncements where this aspect of the matter has been dealt with in the cases of Land Acquisition Act as well as Urban Land Ceiling Act.
The observation as made in case of Ravindra Prakash Misra and others Vs. State of U.P. and others reported in 2007(4) ADJ 426 is hereby quoted-
"it is categorically stated that the respondents never undertook any exercise at all in respect of any of the petitioners under Section 10 (6) of the Act 1976. It is alleged that the claim of possession made by the respondents is merely on paper and the petitioners, at no point of time, were ever dispossessed from the land in question. In reply thereto, the counter affidavit on behalf of the Development Authority simply states that the same did not require any specific reply but the counter affidavit filed on behalf of the State recites that a notice under Section 10 (3) followed by a notice under Section 10(5) of the Act 1976 had been issued and copies thereof have been filed along with the said counter affidavit. A perusal of the notice under Section 10(5) of the Act 1976 demonstrates that the said notice has been issued in the name of the petitioner no.1 only. The counter affidavit nowhere recites that notices were served separately on all the petitioners under Section 10(5) of the Act 1976. There is no averment in the counter affidavit as to how the said notice was served on the petitioner no.1. There is also no averment in the counter affidavit which would indicate that notices were issued to the petitioners no. 2 and 3. Apart from this, paragraph 16 of the writ petition has not been denied effectively at all. Paragraph 8 of the counter affidavit of the State simply states that there is nothing on the record of the said answering respondent in respect thereof. This leaves no room for doubt that no proceedings for taking actual physical possession were ever initiated under Section 10(6) of the Act 1976.
In the absence of any material to the contrary, the inescapable conclusion is that the petitioners continued to retain the actual physical uninterrupted possession which was also protected during the pendency of the writ petition under an interim order dated 14.03.2000.
8.On the aforesaid factual premise, we find force in the submissions made by the learned counsel for the petitioners which is squarely supported by the two Division Benche decisions of this Court in the case of Chhabinath Vs. State of U.P. & Ors., 2005 (2) AWC 1405 followed by the decision in the case of State of U.P. & Anr. Vs. Hari Ram & Anr., 2005 ALJ 2402. The following observations in the case of State of U.P. Vs. Hari Ram (supra) are quoted below in support of our conclusions:-
30. In Section 10 (3) of the Act, the expression used by the Legislature is that land declared surplus ".......shall be deemed to have vested absolutely in the State Government............" Term 'vested' refers to de jure 'title' and 'interest' in the surplus land irrespective of actual possession.
33. In contradistinction to the above, in the case of 'surplus land' ' being vested' in the State under Section 10 (3) of the Act, the Act further provided steps for taking possession under Section 10(5) or 10 (6) of the Act.
37. From the above dictionary meanings it is clear that expression 'vest/vested' may or may not include 'transfer of possession'. It means that 'vested' includes 'physical possession or not' shall depend upon the overall reading of statutory provisions.
38. In the light of the above, the expression 'vesting' used in the Act, 1976 and the Repeal Act has to be read with reference to and in the context they are used. A perusal of Section 10 of the Principal Act (particularly Sections 10(3), 10(5) and 10(6) and Sections 3 and 4 of the Repeal Act provide that surplus land when 'deemed to have vested' does not refer to 'physical possession'. This becomes conspicuous on reading Sections 10(5) and 10(6) of the Act, which alone talk of 'actual physical possession'.
43. Section 10(1) of the Act contemplates a 'notification' in the official Gazette of the concerned State giving particulars of the vacant land held by a person in excess of ceiling limit. The words "such vacant land is to be acquired" used in the Notification shows the surplus land will be acquired later. Section 10(3) of the Act provides for another notification in the official Gazette to notify the date with effect from which 'such land shall be deemed to have been acquired and deemed to have absolutely vested' in the State Government.
44. Expression 'possession' is used for the first time in Sections 10(5) and thereafter 10(6) of the Act. Notification under Section 10 (1) and 10 (3) are not relevant so far as the question of applicability of saving clause of Section 3 of the Repeal Act is concerned.
45. Section 10(5) of the Act provides that Competent Authority may be notice in writing order any person, who may be in possession of the land declared surplus to surrender or deliver possession thereof to the State Government or to any person duly authorized in this behalf within 30 days of the service of notice. Section 10 (5) makes it clear and shows that ''vesting' is something different and distinct from ''possession'.
46. Section 10 (6) of the Act takes care of a stage when a person, in possession of surplus land fails to surrender/deliver possession voluntarily or receipt of notice under Section 10(5) of the Act and, in that contingency authorizes/empowers competent authority to take physical/de facto possession of such vacant lands so declared surplus land.
47. Section 3 of the Repeal Act amply reflect the purpose and intention the Legislature, namely where a land owner remains in physical possession, then irrespective of its being 'declaring surplus, and/or entry being made in favour of State in Revenue Records as a consequence of vesting and even if compensation is paid or received, in law, surplus land gets exempted and ought to remain with original landowner. The relevant criterion is whether physical possession of the land declared surplus was ever taken by the State Government. If answer is in 'negative', the landowner must not suffer and have the benefit of Repeal Act because, due to- the inaction/failure on the part of State to take physical possession before coming into force the Repeal Act, in negation of 'Aim and object' and purpose of the Act.
48. Section 3 (2) (a) and (b) of Repeal Act make clear that even receipt of compensation will not disentitle one to claim benefit of the Repeal Act if compensation is refunded, provided a person continues to be in physical of the land declared surplus.
49. The above interpretation of Section 3 of the Repeal Act; further finds support from Section 11 of the Act, which refers to 'deemed acquisition' under Section 10 (3) of the Act. It has no reference to section 10 (5) of 10 (6) of the Act. It shows that notional compensation (as against market value) becomes payable, as and when land is 'deemed vested' in the State Government even without resumption of or taking physical possession of surplus land. For claiming compensation or taking over of 'physical possession' is not the condition precedent under the Act. Section 11 (1) of the Act affirms the above position and explains the purpose of incorporation of Section 3 (2), Clauses (a) and (b) of Repeal Act. Section 3 (2) (a) of Repeal Act- qualifies that 'surplus land' is deemed vested under Section 10 (3) of Principal Act but possession of which has not been taken. It shows that condition precedent by taking of physical possession is not the 'deemed vesting' or mutation in Revenue Records.
50. Mere 'mutation' of entry in favour of State/other persons in revenue records, is irrelevant/inconsequential so far as the applicability of Section 3 of Repeal Act is concerned.
51. Similar conclusion is irresistible if we read Section 4 of the Repeal Act that again talks of possession of which has been taken over by the State. Answer to the question - 'when possession is taken over can be found out from the entries made in due course- at relevant time in ULC Forms I, II and III.
It is clear that mere vesting of 'land declared surplus' under the Act, without resuming 'de facto possession', is of no consequence and the landholder shall be entitled to the benefit of Repeal Act.
There is no even an iota of material to show that steps were taken by the petitioners to take physical/de facto possession of the surplus land on spot.
Firstly, an illegal act is not recognized in law and has to be ignored unless specifically required under statute to be reckoned with. Secondly, possession of surplus land, on notice given under Section 10(5) of the Act is to be surrendered by the landowner voluntarily in pursuance to said notice. If the landowner does not surrender possession in pursuance to the aforesaid notice, ''the Act' contemplates taking possession by force and coercing the landowner under Section 10(6) of the Act. If possession is taken in an extraordinary manner (process not recognized in law) i.e. without resorting to the provisions contemplated under Section 10(5) or Section 10(6) of the Act, then possession will be irrelevant and of no consequence so far as the applicability of the Repeal Act is concerned. The repeal Act shall have no effect on the Principal Act if possession of surplus land was not taken as contemplated in the Principal Act. Repeal Act, clearly talks possession being taken under Section 10(5) or 10(6) of the Act. It is a statutory obligation on the Competent Authority or State to take possession as permitted in law. It is to be appreciated 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 reorganization in law and it will have to be ignored and treated as of no legal consequence. The possession envisaged under Section 3 of the Repeal Act is de facto and not de jure only."
Most of the aspects noted above, were subject matter of bunch of cases before the Apex Court of which the leading appeal is Civil Appeal No. 2326 of 2013 (Arising out of S.L.P.(Civil) No. 12960/2008, State of U.P. Vs. Hari Ram were dismissed by the Apex Court on 11.3.2013. The judgment of Apex Court is reported in JT 2013 (4) SC 275.
The observation of the Apex Court on main issue can be quoted here-
"2. We are, in these batch of cases, called upon to decide the question whether the deemed vesting of surplus land under Section 10(3) of the Urban Land (Ceiling and Regulation) Act, 1976 [for short ''the Act'] would amount to taking de facto possession depriving the land holders of the benefit of the saving Clause under Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 [for short ''the Repeal Act'].
14.We notice even after the coming into force of the Repeal Act, the competent authority under the Act 33 of 1976 vide its letter dated 10th June, 1999 informed the Bandobast Chakbandi Adhikar that the surplus land declared as per the notification issued under the Act had vested in the State Government free from all encumbrances and, therefore, in the revenue records the name of State Government be entered and name of the respondent be mutated. The competent authority vide its notice dated 19.6.1999 issued under Section 10(5) of the Act directed the respondent to handover possession of the land declared as surplus to duly authorized persons on behalf of the Collector.
15. Before examining the impact of the Repeal Act on Act 33 of 1976,particularly, Section 3 of the Repeal Act on sub-section (3) to Section 10 of the Act, let us examine whether possession could be taken following the procedure laid down in sub-section (3) to Section 10 of the Act. Section 6 casts an obligation on every person holding vacant land in excess of ceiling limit to file a statement before the competent authority and after following all the statutory procedures, the competent authority has to pass the order under Section 8(4) on the draft statement. Following that, a final statement has to be issued under Section 9 on the person concerned. Sub-section (1) to Section 10 states that after the service of statement,the competent authority has to issue a notification giving particulars of the land held by such person in excess of the ceiling limit. Notification has to be published for the information of the general public in the Official Gazette, stating that such vacant land is to be acquired and that the claims of all the persons interested in such vacant land be made by them giving particulars of the nature of their interests in such land.
16.Sub-section (2) of Section 10 states that after considering the claims of persons interested in the vacant land, the competent authority has to determine the nature and extent of such claims and pass such orders as it might deem fit. Sub-section (3) of Section 10 states that after the publication of the notification under sub-section (1), the competent authority has to declare that the excess land referred to in the Notification published under sub-section (1) of Section 10 shall, with effect from such date, as might be prescribed in the declaration, be deemed to have been acquired by the State Government. On publication of a declaration to that effect such land shall be deemed to have been vested absolutely in the State Government, free from all encumbrances, with effect from the date so specified.
Voluntary Surrender
28. 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 UP and Others (1977) 1 SCC 155, while interpreting Section 117(1) of U.P. Zamindari Abolition and Land Reform 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. Kalyan (dead) by Lrs. (2000) 8 SCC 99 held as follows:
"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. Charlton. 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."
29. 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.
30. 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
31.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.
. 32. 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. Subsection (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.
33. 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.
34. Requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word ''may' has been used therein, the word ''may' in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 11 is that it might result the land holder being dispossessed without notice, therefore, the word ''may' has to be read as ''shall'.
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.
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 costs."
It is a matter of common notice and also matter of record that large number of cases which earlier came before this court and were decided and even at present also on getting the record it is clear that proceedings are either without any notice on the land holders or after the notice to the dead person or after the notice but not the proper service stating the name of the witnesses and their details and in most of the cases proceedings did not progress after the notice under Section 10(5) of the Urban Land (Ceiling and Regulation) Act 1976 and if there is notice under Section 10(6) of the Act it again do not contain proper service with the name/identity of the witnesses. For taking Dakhal document demonstrates the authority signing the paper is not competent. The emphasis on the word 'actual physical possession' has some special meaning and thus that rules out the paper possession and it is for this reason it has been said that mere entry will not reflect taking of actual physical possession.
We can safely assume that nobody is going to leave the possession just on mere asking by a notice under Section 10(5) of the Act. It is highly improbable to accept and believe that a notice under Section 10(5) of the Act is given and the person proceeds to surrender and deliver the possession to the State or to a person duly authorized.
The Law Courts has always expected the strict proof of taking possession under the Rural Ceiling also having found it to be a confiscatry law. The land owned by any person might be coming down from the time of their ancestors will be so easily and conveniently surrendered as is being stated by the State in the counter affidavit is a matter of surprise. The factum of actual possession which has a vital role on the right of Landholder certainly has to be actual physical possession and that too in accordance with law and therefore that permits a big room of inquiry in all respect and the court having not found any positive material and any overt act to show dispossession of the landholder has to lean in their favour and thus in view of the repeal of the Urban Land (Ceiling and Regulation) Act, 1976 a person having continued in possession will continue with his rights.
The court feels that after imposition of ceiling on agricultural land by the State Government and its success in getting the land and its distribution to the weaker class the demand for imposing of ceiling on urban properties was also felt with the growing population and for orderly development of the urban areas and also to take measures to regulate social control over the resources of urban land besides other allied purposes. After lapse of reasonable time for various kind of pressures and we do not exactly know the object but primarily for the reasons stated in the Repeal Act the Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force.
It is to be observed that all the decided cases on the point have interpreted the possession as 'actual physical possession' and not only paper/symbolic. There being no specific provision for taking over possession of the surplus land direction was issued named as 'U.P. Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983. For payment of compensation and procedure for taking possession of the vacant land and its manner has been dealt in great detail in the decision given by this court in the case of Ram Chandra Pandey (Supra).
If we read the relevant provisions of the U.P. Urban Land (Ceiling and Regulation) Act, 1976 and U.P. Urban Land (Ceiling and Regulation) Repeal Act 1999 then it will be clear that mere vesting of the land declared surplus under the Act without taking de facto possession is of no consequence and land holder shall be entitled to the benefit of Repeal Act. The effect of the Repeal Act is further clear that if the land owner remains in physical possession then irrespective of his land being declared surplus and/or entry being made in favour of the State in Revenue Records, he will not be divested of his rights. Even if compensation is received that also that will not dis-entitle him to claim the benefit if compensation is refunded, provided he is in actual physical possession. Payment of compensation has no co-relation with the taking of actual physical possession as with the vesting of land compensation becomes payable which can be paid without taking actual physical possession.
It is not to be emphasised again and again that irrespective of vesting of land the State or the competent authority authorizes by the State is to establish taking of actual physical possession from the landholders, after following due procedure and therefore, in all the cases there has to be a verification about continuance of actual physical possession as claimed by the landholder or its taking over as claimed by the State as provided in law and it is accordingly rights of the parties are to be governed.
In view of the aforesaid discussions and examination of various aspects in various judgments it is clear that if proceedings have started by sending notice against the dead person at any stage then that will not divest the landholder of his rights. There has to be proper service as provided under Section 10(5) of the Act. There has to be proper service under Section 10(6) of the Act. Required procedure has to be followed. Possession is to be taken by the competent authority. Possession has to be actual physical and not symbolic. Mere change in the entry is also not the enough proof of dis-possession. The effect of the Repeal of the Principal Act is so clear and loud which permits the rights with the landholders if actual physical possession has not been taken over by the State or by any person duly authorized by the State Government in its behalf after due notice and service in accordance with law.
We are just to add here for caution that facts of each and every writ petition has not been mentioned separately as that was to add the bulk. When the case was taken up learned Advocate in presence of learned Standing Counsel stated the relevant facts of their cases which primarily related to issuance of notice against dead person, non service of notice under Section 10(5) of the Act, non service of notice under Section 10(6) of the Act, non taking of possession in accordance with law by the competent authority. The main stand of the State is of taking possession after notice under Section 10(5) of the Act and sometimes giving the same to the development authority.
Here we are to notice that in respect to the rights and possession over the property of others (if two sets are there) the person who may not have any right draws a skeleton and fill ups the colour and then presents the same till the last in a very powerful manner. It is then on defeat he leaves the property/possession. Here we are talking from the State side that notice under Section 10(5) of the Act to surrender and deliver the possession was given and everything went off so peacefully which no one can imagine. At various times the development authorities state about their possession. Certainly that has to flow from the State, therefore, first State has to demonstrate its lawful authority i.e. taking of actual physical possession in accordance with law and if that is not substantiated then everything has to fall. This being very basic thing in all the petitions, all the aspects were checked in presence of the State side, some from the record and some otherwise upon which a conclusion has been arrived at. As and when an individual case is to be there the tenure holder is to establish either of the situation as has been explained in series of the cases noted on the point and also the case in hand for getting the relief. If the factual premises do not support the petitioner then certainly State has to succeed.
In respect to the cases where after declaration of the land as surplus and deemed vesting, the landholder has transferred their land, the question of consideration of their existing rights has to be seen as on the date of transfer whether they have any right to be enforced or otherwise, and therefore, this class of cases will have to be kept separate for being dealt.
Accordingly, all the writ petitions are allowed. Respondents are directed not to interfere in the peaceful possession of the petitioners and also to restore entry of their name on moving appropriate application in accordance with law.
22nd May, 2013
M.A.A.
