Allahabad High Court
Phul Chandra vs State Of U.P. & Others on 13 August, 2015
Bench: Krishna Murari, Amar Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 3
Case :- WRIT - C No. - 35593 of 2008
Petitioner :- Phul Chandra
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- Atul Kumar Srivastava
Counsel for Respondent :- C.S.C.
Hon'ble Krishna Murari, J.
Hon'ble Amar Singh Chauhan, J.
We have heard learned counsel for the petitioner and learned Standing Counsel for the respondents- State.
Specific case set up by the petitioner is that the land in dispute though was declared as surplus under the Urban Land (Ceiling and Regulation) Act, 1976 (in short hereinafter referred to as 'Act'), but actual physical possession has not been taken and, thus, he is entitled to the benefit of provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (in short hereinafter referred to as 'Repeal Act').
It has been specifically alleged in paragraph 8 of the writ petition that no notice under Section 10 (1), 10 (3) and 10 (5) of the Act was ever served upon the petitioner and he continues in de-facto physical possession of the land in dispute. It is further alleged that he is in actual possession over the land in dispute and is using it for agricultural purposes till date.
A counter affidavit has been filed by the State-respondents. It is stated in the counter affidavit that proceedings under Sections 9, 10(1) and 10 (3) of the Act were held much before the Repeal Act 1999, which was followed by the notice under Section 10 (5) of the Act 1976 which was issued on 23.05.1996. In paragraph 5 of the counter affidavit it has been stated as under :
"5. That notification under Section 10 (1) of the Act was issued after preparation of the final statement under Section 9 of the Act, which was published in the official Gazette on 30.06.1986. As no objection was received under Section 10 (2) of the Act, notification under section 10 (3) of the Act was issued, which was published in the official Gazette on 23.03.1996 and thereafter notice under Section 10 (5) of the Act was issued on 23.05.1996 to the returnee requesting him to surrender the excess vacant land. Thereafter the name of the State was recorded in the revenue record. The entire proceedings were concluded much before the Repeal of the Act in the year 1999."
Specific case set up by the petitioner is that he continued to hold actual physical possession and the State never took over possession has not been specifically denied in the counter affidavit. The counter affidavit does not contain any detail as to when and in what manner possession of the land declared surplus was taken. As already noted above, State authorities on the contrary admit that revenue authorities after receiving a copy of the notice under Section 10 (5) of the Act, 1976 sent to them incorporated the name of the State in the revenue record.
It is well settled that actual physical possession of the land is to be taken before the enforcement of the Repeal Act, 1999 with effect from 18.03.1999.
The issue was considered by the Division Bench of this Court in the case of Ram Chandra Pandey Vs. State of U.P. reported in 2010 (82) ALR 136, wherein it was held that mere symbolic possession does not amount to taking over actual physical possession. It was further held that unless actual physical possession has been taken by the State, the party would be entitled to the benefit of the Repeal Act, 1999.
The same view has been taken by the Apex Court in the case of State of U.P. Vs. Hari Ram [JT 2013 (4) SC 275: 2013 (4) SCC 280]. The question for consideration before the Apex Court in the said case was whether deemed vesting of surplus land under section 10(3) of the Act would amount taking over de facto possession depriving the landholders to the benefit of the saving clause under sub-section (3) of the Repeal Act. This issue was answered by the Apex Court in para 39 of the said judgment, which reads as under:-
"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 same issue has been reaffirmed by the Apex Court in the case of Gajanan Kamlya Patil Vs. Addl. Collector & Comp. Auth. & Ors. reported in JT 2014 (3) SC 211.
In the absence of any specific averments in the counter affidavit or material to demonstrate that the State has taken actual physical possession of the land declared surplus, the proceedings are liable to be abated under the Repeal Act, 1999 and the petitioner is, thus, entitled to benefit of Repeal Act and in the facts and circumstances, the writ petition deserves to be allowed.
Accordingly, the writ petition succeeds and stands allowed. A writ of mandamus is issued commanding the respondents not to interfere in the actual physical possession of the petitioner over the land in dispute which was declared surplus and they are further directed to restore the entry of the name of the tenure holders in the revenue records. There shall be no order as to costs.
Order Date :- 13.8.2015
Dcs
