JUDGMENT A.K. Yog and B.B. Agarwal, JJ.
1. Heard Sri Mansoor Ahmad learned counsel for the petitioner and Sri R.K. Chaubey learned Standing Counsel appearing for all the respondents.
2. Chabi Nath son of Sraju Prasad has filed this petition under Article 226 of the Constitution of India claiming a writ of mandamus commanding the respondents not to interfere with their physical possession over plots No. 68 and 68 (part) situate in village Mawaiya Tahsil Karchhana district Allahabad measuring 7184.77 sq. meters declared surplus under order dated January 27, 1981 passed by the then Competent authority under Urban Land (Ceiling and Regulation ) Act, 1976 "called the Act" filed as annexure "2" to the petition, as also a writ of mandamus commanding respondent No. 3/Competent Authority under the Act to delete the name of State government from the revenue records and substitute the name of the petitioner in respect of the land in question which was declared surplus.
3. The case of the Petitioner is that his land was declared surplus by he Competent Authority under the Act. The petitioner claims that he is Bhumidhar of the agricultural land in question and is using it for agricultural purposes for more than 35 years. According to him, certain trees also stand on the said plot. It is admitted that some action was taken under Section 8(3) of the Act by issuing notice but petitioner has submitted its reply dated 16.10.1980 (annexure 1 to the petition). In the said reply the an petitioner has again reiterated the above facts including the fact that he is carrying on agricultural activities on the said land.
4. Petitioner has categorically stated in paras 5 and 6 of the petition that no show cause notice was served upon him to hand over physical possession by the Collector and physical possession of the land so declared surplus has never been taken by the Competent Authority or the Collector Allahabad. He reiterates that while proceedings were initiated under Section 10(1), 10(3) and 10(5) of the Act, no notice was served up on the petitioner and he continued in defacto physical possession of the land in question. The petitioner goes on stating that the petitioner was and is always in actual possession over the land and using it for agricultural purposes till today and over part of the aforesaid plot 22 trees of Mango and Mahuwa are still existing.
5. While this writ petition was initially presented, a Division Bench of this Court passed an interim order and while granting time to the Standing Counsel to file counter affidavit, it directed:-
"In the meanwhile, the petitioner shall not be ejected from the land in question."
6. No counter affidavit has been filed. The writ petition was admitted and time was again granted to the respondents for filing counter affidavit. The Court, this time, by the order dated 12.01.2005 directed:-
"Until further order, if petitioner has not been dispossessed in pursuance to the proceedings under Urban Land (Ceiling & Regulation Act, 1976, the respondents shall not interfere with the possession and enjoyment of the petitioner."
7. No counter affidavit has been filed even today. Averments made in writ petition stand unrebutted.
8. Learned Standing Counsel has, however, submitted that in view of the relief claimed in the writ petition, (as noted above) the petitioner cannot claim benefit of the Urban Land (Ceiling and Regulation) Repeal Act, 1999; copy of which has been filed as annexure "3" to the petition.
8. In this context, we deem it proper to deal with the relevant provisions of the Act as well as the Repeal Act so that there remains no ambiguity or uncertainty with regard to the effect of issuance of the notification under Section 10 of the Act. Relevant extract of Sections 3 and 4 of the Repeal Act read:
3.SAVINGS:- (1) The repeal of the Principal Act shall not affect:-
(a) ...............................
(b) ..................................
(c) ................................
(d) ...................................
(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 hut 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 restore unless the amount paid, if any, has been refunded to the State Government."
"4. Abatement of legal proceedings- All proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate;
Provided that this section shall not apply to the proceedings relating to Section 11, 12, 13 and 14 of the Principal Act in so for as such proceedings are relatable to the land, possession of on which has In'en taken over by the state Government or any person duly authorised by the State Government in this behalf by the Competent Authority."
9. Section 10(i) of the act casts duty upon a competent Authority to cause 'notification' in the official Gazette of the State concerned giving particulars of the vacant land held by a person in excess of ceiling limit.
10. Section 10(3) of the Act again require Competent Authority, to publish another notification in the official gazette an (of the the State concerned) an notifying the date with effect from which said surplus land shall be deemed to have been acquired by the state Government and 'such land shall be deemed to have vested absolutely in the state Government free from all encumbrances'.
11. The categorical expression used by the legislature under Sections 10(1) and 10(3) of the Act 'deemed', vesting by legal fiction refers to title only. It does not provide for 'deemed' vesting of not to the physical or defacto possession. Expression 'Possession' is used in Sections 10(5) and 10(6) of the Act. Section 10(3) specifically avoided to refer to and it is conspicuously silent on 'vesting of possession by legal fiction'.
12. Notifications under Section 10(1) and 10(3), as such are not at all relevant so far as the question of applicability of saving clause of Section 3 of the Repealing act (as quoted above) is concerned.
13. Section 10(5) of the Act provides that Competent Authority may by notice in writing order any person, who may be in possession of the land so 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 such notice. Whereas Section 10(6) of the Act takes care of the stage where a person, in possession of land an declared surplus, fails to surrender or deliver possession upon the order passed under Section 10(5) of the Act and authorizes/ empowers competent authority to take possession of the vacant lands of the land declared surplus laud deemed ft vested in the State.
14. From the expressions used in Section 10(5) and 10(6) of the Act, it is clear that mere vesting of title with respect to land declared surplus under the Act (without) de-facto possession being taken is of no consequence.
15. Consequently, even if an entry is made in revenue records, in favour of State, it is inconsequential so far as the applicability of Section 3 of Repealing Act is concerned.
16. The view taken by us and the interpretation of Section 3 of the repealing Act (as noted above) is fully supported in view of Section 11 of the Act.
17. Section 11 refers to Section 10(3) of the Act. It has no reference to Section 10(5) of the Act. It means that compensation becomes payable, as and when land is 'deemed vested' in the State Government. For claiming compensation, it is, therefore, not necessary that actual physical possession is taken by the Competent authority under Section 10(5) and/or 10(6) of the Act. The aforesaid position is clear from the reading of Section 11(10) of the Act.
18. Relevant extract of the Judgement dated May 9, 2001 in writ petition No. 54722 of 1999 states:-
This petition relates to the Urban Land (Ceiling and Regulation) Act, 1976 as repealed in 1999. In Pt. Madan Swamp Shrotiya, Public Charitable Trust v. State of U.P. and Ors. ,J.T. 2000(3) S.C. 391 it has been held by the Supreme Court that if possession has been taken over by the State Government then the proceedings under the Act will not abate but if the possession has not been taken over the proceedings an shall abate. We make it clear that the word possession means actual physical possession. Hence if actual physical possession has been taken over the proceedings shall not abate otherwise they will abate.
The petition is disposed of accordingly."
(underlined to lay-emphasis)
19. In view of the above even though there has been entry in favour of the State in revenue records without taking action to take possession under Section 10(5) and 10(6) (i.e. actual physical possession) the actual tenure holder can not be deprived of the benefit of the Repeal Act.
20. In that view of the matter, the writ petition stands allowed. A writ of mandamus is issued against the respondents not to interfere with the possession of the petitioner over the land declared surplus under the Act by the Competent Authority vide order dated 27.1.1981 (Annexure '2') and further to correct revenue records on necessary steps being taken by the petitioner in that respect.
The petition is allowed.
No counter affidavit filed. Hence, no order as to costs.