Chief Justice's Court
Case :- WRIT - C No. - 11557 of 2011 Petitioner :- Kunwar Sain And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- R.K. Srivastava,Smt. Priyanka Srivastava Counsel for Respondent :- C.S.C.,Pradeep Kumar Singh
Hon'ble Govind Mathur,Chief Justice Hon'ble Saurabh Shyam Shamshery,J.
This petition for writ is preferred to have appropriate writ order or direction for respondents not to interfere in the peaceful possession and legal use of the land bearing Gata Nos. 2304, 253 and 165 situated in Village Dhakka Lakri Fazalpur, Tehsil and District Moradabad.
In brief factual matrix of the case is that the competent authority under the Urban Land (Ceiling & Regulation) Act, 1976 initiated proceedings against father of petitioners Sri Kesari Singh, who was said to be holding a part of land in excess to the limit prescribed under the Act aforesaid. Sri Kesari Singh, the father of the petitioners, died on 26th December, 1991. During the pendency of the proceedings aforesaid, a notice of possession was issued in the month of January, 1993. Though the notice was in the name of Sri Kesari Singh, father of the petitioners, but that was served upon Smt. Gomti, mother of the petitioners. As per the respondents, the possession of the land was also taken from them. The possession of the surplus land was also taken from Smt. Gomti. The petitioners approached this Court with an assertion that in light of the provisions of Section 3 of the Urban Land (Ceiling and Regulation Repeal) Act, 1999, the proceedings under the Act of 1976 stands lapsed as no physical possession of the surplus land was taken by the respondents.
Learned counsel appearing on behalf of the State while meeting with the argument advanced states that on 15th January, 1993 possession of the surplus land was taken and that is apparent from perusal of the possession notice that was served upon Smt. Gomti.
Heard learned counsels and examined the entire record.
It is not at all in dispute that in light of clause (a) of sub-section (2) of Section 3 of the Urban Land (Ceiling and Regulation Repeal) Act, 1999 where the possession of the land has not been taken over, the said land shall not vest in the State despite the proceedings having drawn under the Act of 1976. Precisely, the issue under consideration before us is that whether respondents have taken physical possession of the surplus land or not. It is a position admitted that Sri Kesari Singh, the person against whom proceedings were initiated under the Act of 1976, died on 26th December, 1991. Till death of Sri Kesari Singh, admittedly the possession of the land was not taken and the process to have possession of the land was initiated in the month of January, 1993 and that too by effecting as notice in the name of Sri Kesari Singh was served upon his wife Smt. Gomti. The fact that the notice was served upon Smt. Gomti itself is sufficient to establish that no physical possession of the surplus land was taken from the holder of the land who died much back in the year 1991. The proceedings under the Act of 1976, after death of Sri Kesari Singh, should have been initiated against his legal heirs but no such effort was made by the respondents. The facts stated above clearly indicates that the physical possession of the land was not taken and whatever procedure adopted, that was only to have paper possession of the land. In view of it, we are having no doubt in accepting contention of learned counsel appearing on behalf of the petitioners that the physical possession of the surplus land was not taken over by the respondents till coming into force Act of 1999.
In this factual background, by the force of clause (a) of sub- section (2) of Section 3 of the Act of 1999 the proceedings under the Act of 1976 stands lapsed and the land which is sought to be surplus, is required to be retained under possession of the present petitioners.
The writ petition hence is allowed in the terms above.
Order Date :- 27.2.2019 VMA (Saurabh Shyam Shamshery, J.) (Govind Mathur, C.J.)