Hon'ble Mrs. Jayashree Tiwari,J.
Heard learned counsel for the parties.
The relief claimed in this petition is for a mandate to the respondents not to take actual physical possession of the disputed land treating as having been declared surplus and further restrain them from interfering with their possession and for a declaration that proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act) viz a viz the disputed land stood abated.
The relevant facts are that upon the promulgation of the Act Amru, the predecessor in interest on the petitioner submitted his return under Section 6(1) and without any notice or opportunity under Section 8(3) thereof an order under Section 8(4) was issued on 2.6.1984 declaring about 1471 square meters land as excess from plot nos. 156/6 and 156/7. However since the order was not served on the land holder, he executed a registered will dated 10.5.1991 in favour of the petitioner who was his daughter-in-law and subsequently the land holder died on 4.3.1996. After the death of the land holder , the petitioner applied for mutation of her name which was duly entered in the revenue records. However, a notice under section 10(5) was issued on 26.6.1999 against the deceased land holder calling upon him to surrender the possession of the alleged excess land but the said notice was returned by the process server with the endorsement of his death. Nevertheless, in pursuance of the aforesaid notice the name of the State was mutated in the revenue record and now they are seeking to 2 dispossess the petitioner thus, the present petition with the allegation that the Act was repealed by the Repeal Act of 1999 abating all proceedings under the Act wherein actual physical possession was not taken over.
The State respondents have filed their counter affidavit inter alia stating that a notice under Section 8(3) of the Act was issued to the land holder who had filed his objection on 12.12.1983 but he did not produce any evidence in support of his objection and therefore, the objections were rejected on 2.6.1984 declaring about 1471 sq. meters of land as surplus under the Act. It is further alleged that a notice under Section 10(3) was duly published in the official gazette and after publication of the notice the name of the State Government was duly mutated on 10.6.1999 and possession was also taken over and therefore, the petitioner is not entitled to any relief.
Before the court proceeds further it would be relevant to go through the scheme of the Act. Upon promulgation of the Act a statement has to be prepared by the Competent Authority with regard to holding of excess land and the draft statement is required to be served under Section 8(3) on the land holder inviting his objection. After receipt of objection the Competent Authority, after reasonable opportunity to the land holder can pass a final order under Rule 8(4) declaring excess vacant land under Section 8(4) and a draft statement has to be prepared under Section 9. Thereafter the Competent Authority has to issue a notification under Section 10(1) inviting persons who are interested in such vacant land to lodge their claims whereafter it has to publish a notification under Section 10(3) by which the land would deem to have vested in the State free from encumbrances with regard to taking over possession of the vacant land. The Competent Authority has to issue a notice under Section 10(5) of the Act ordering the land holder to surrender or deliver possession 3 to the Government or any person authorised in that behalf within 30 days of the receipt of notice failing which the Competent Authority is authorized to take possession by force under Section 10(6).
It is evident from the record that notice under Section 10(5) asking the land holder to surrender possession was issued on 26.6.1999 and a copy of the same is annexed with the counter affidavit. The notice shows it was returned with endorsement of the process server that the land holder is dead and therefore, notice could not be served. Thus, it is established beyond any shadow of doubt that the notice under Section 10(5) was issued for the first time in June, 1999. Before the notice could be issued, the legislature intervened and promulgated the Repeal Act of 1999 which was adopted by the State of U.P. w.e.f. 18.3.1999. Under the Repeal Act all proceedings have been abated except those where actual physical possession has been taken over and it makes a distinction between "possession" under Section 10(5) or sub clause 6 and "vesting" as under Section 10(3). A Division Bench of our Court in the State of U.P. Vs. Hari Ram [2005 (60) ALR 535], after considering in detail the scheme of the Act and the Repeal Act has held that where actual physical possession before 18.3.1999 is not taken, all proceedings under the Act would abate and no action on the basis of the Act can be taken.
However, learned Standing counsel contends that the possession of the vacant land after it vested in the State under Section 10(3) was taken over by the State. Apart from a bald allegation in the counter affidavit there is no documentary proof to prove the factum of possession. In fact even the date on which the possession was allegedly taken by this State is not disclosed in the counter affidavit. The State Government itself in exercise of powers under Section 35 of the Act has issued directions known as U.P. Urban Land Ceiling (Taking of Possession, Payment of Amount 4 and Allied Matters) Direction 1983 for the purposes of taking over possession. These directions provide that where possession of the excess vacant land is taken either Sub Section 5 or Sub Section 6 of Section 10, entry would have to be made in the register in Form No. ULC-III and also in column no. 9 of the Form No. ULC-I. It further mandates the Competent Authority to put his signatures in the column no. 2 of Form No. ULC-I and column no. 10 in Form No. ULC-III in token of verification of the entries of possession. Neither there is any allegation in the counter affidavit nor copies of any of the forms have been annexed to show that in fact possession was taken.
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.
Thus, it is apparent that all proceedings taken against the deceased land holder stood abated under the Repeal Act, 1999 and accordingly, it is declared as such and the writ petition succeeds and is allowed. The respondents are further directed not to interfere in the possession of the petitioner over the disputed land and to further enter their names in the relevant revenue register.
In the circumstances of the case, no order as to costs.
Order Date :- 18.1.2010 AK