JUDGMENT By the Court.—Heard learned counsel representing their respective parties. 2. Present writ petition arises out of proceedings under ‘The Urban Land (Ceiling & Regulations) Act, 1976’ (called the Principal Act) and this Court is required to decide consequences of ‘The Urban Land (Ceiling & Regulations) Repeal Act, 1999’ (called the Repeal Act) which became applicable in the State of U.P. in March, 1999. 3 The petitioner, has pleaded, inter alia amongst others that he is the owner/tenure holder of Khasra plot No. 491 (7272.17 Sq. Meters), village-ara Sirohi Pargana, Tahsil and District Kanpur Nagar; upon commencement of the Principal Act, Draft statement in Form III prescribed under Rule 5 of the Rules framed under the Principal Act was prepared; in the Draft statement-1000 Sq. Meters of area of said plot is left within ceiling limit and 6272.17 Sq.Mts. was held surplus; the petitioner claims that no notice as required under Rule 5 was served upon the petitioner (see paras No. 9 and 14 of the writ petition); the impugned order dated 31.3.1997 declaring 6272.17 Sq. Mts. land as surplus (Annexure 3 to the writ petition) is illegal and arbitrary; the petitioner has continued and still continues to be in possession of entire land of said plot No. 491, Repeal Act came in force in State of U.P. in March, 1999; in January 2004 some employees of the Kanpur Development Authority (the KDA) tried to interfere with petitioner’s possession and enjoyment of the said land; the petitioner on inspecting relevant records discovered entry in favour of KDA in Khatauni of 1406-1411 Fasli against the said plot in question; the petitioner is entitled to the benefits of the Repeal Act inasmuch as he was never dispossessed either de facto or de jure from the plot in question and has throughout been in de facto possession of it. 4. On the above pleadings, the petitioner claimed following reliefs : "It is, therefore, most respectfully prayed that this Hon’ble Court may graciously pleased to: (a) call for record of the case and issue a writ, order or direction in the nature of certiorari quashing order dated 31.3.1997 (contained in Annexure III) passed by the Competent Authority, the Respondent No. 2 in case No. 9985, State v. Guru Prasad and others declaring 6272.17 Square Meters. (b) issue a writ, order or direction in the nature of mandamus commanding the respondents not to dispossess the petitioner from the land in dispute except in accordance with law. (c) issue such other writ, order or direction as may be deemed to be necessary under the facts of the case. (d) award costs to the petitioner." 5. Counter affidavit (sworn by one Ashok Kumar Misra) has been filed on behalf of the respondent No. 2, Competent Authority under the Principal Act. It is contended that notice in prescribed form was issued under Section 10 (5) of the Act ; after expiry of the prescribed period, possession was taken by the State Government who handed over the said land to the K.D.A. on 13.2.1999; the petitioner is not entitled to the benefit of the Repeal Act. 6. The main defence of the said respondents is contained in paras 4 and 7 of their counter affidavit. 7. It is to be noted that there is no categorical averment in the counter affidavit or material filed alongwith this counter affidavit to show that alleged notice/Draft Statements or the consequential orders were de facto/actually served upon the petitioner. Categorical pleadings of the petitioner on this point have not been denied and the same remained unrebutted. 8. We may also refer to the impugned order dated 31.3.1997 (Annexure 3 to the writ petition) wherein Competent Authority himself noted that notice of draft statement under Section 8(3) of the Ceiling Act was not received back in his office and, therefore, presumption was raised after thirty days with reference to Postal Manual (without disclosing particular provision) and holding that notice should be deemed to be received by the addressee. In any case, this legal presumption is rebuttable. The petitioner has categorically asserted non-receipt of notice/Draft Statement. Writ Para 9 and 14, relevant to the point in hand, read : “9. That no notice under Rule 5 has been served on the petitioner. 14. That no notice under Rule 5 of the Rules was ever served on the petitioner." 9. The categorical averments made regarding non-receipt of notice contained in paras 9 and 14 to the writ petition have been replied by paras 12 and 14 of the said counter affidavit which read : “12. That the contents of paras 9, 10 and 11 of the writ petition, as stated, are denied. The categorical averments made regarding non-receipt of notice contained in paras 9 and 14 to the writ petition have been replied by paras 12 and 14 of the said counter affidavit which read : “12. That the contents of paras 9, 10 and 11 of the writ petition, as stated, are denied. Suitable reply in detail have already been given in the foregoing part of this counter affidavit, which may kindly be perused here. In view of the facts stated above, the provisions of Repeal Act, 1999, of the Principal Act, has not been made applicable in the present case. The petitioner is not entitled for any of the reliefs, as claimed. 14. That the contents of paras 14, 15 and 16 of the writ petition, as stated, are denied. Suitable reply in detail have already been given in the foregoing part of this counter affidavit, which may kindly be perused here." 10. Presumption of service of notice raised by the competent authority in the impugned order in view of failure to assert de facto service of notice or categorical denial of the facts pleaded in writ petition stands rebutted. We may refer to our earlier order dated 26.5.2005, relevant extract of which reads : "Sri Ashok Kumar Misra, Junior Engineer, Urban Land Ceiling, Kanpur Nagar has placed Register containing ULC Form I, Register shows that the date of service of the notice under Section 10(5) of the Principal Act, 1976 has not been shown. Ashok Kumar Misra informed that notice is sent from the office of the Sub Divisional Magistrate/Collector and it was not ascertained whether notice was served or not.” 11. We have no other option but to record a finding that no notice of the draft statement under section 8(3) of the Act was served upon the petitioner. 12. It is to be noted that the petitioner can succeed by taking advantage of the Repeal Act only if it is found that the ‘area declared surplus under ‘the Principal Act remained in ‘de facto’ possession of the petitioner and that he was never dispossessed on the spot from the said ‘surplus land’ in accordance with law at any relevant point of time, i.e. before commencement of the Repeal Act. 13. 13. It is now settled and none of the parties before us disputed) that where ‘de facto possession of the land (declared surplus under the Principal Act) has not been taken and the owner/tenure holder continued to be in its possession, the proceedings initiated under the Principal Act stand repealed and the ‘tenure holder’ shall continue to be its absolute owner. 14. A Division Bench of this Court (with one of us A.K. Yog, J.) has already dealt in detail with the aforesaid aspect in its judgment and order dated 27.4.2005 in Civil Misc. Writ Petition No. 47369 of 2000, ‘State of U.P. through Competent Authority and another v. Hari Ram and another’, 2005(60) ALR 535 following its earlier decision in the case of Chhabinath v. State of U.P. and others, 2005 ALJ 2402. Learned counsel representing the parties in the case informed that the judgment has not been challenged before higher Court. 15. The Apex Court in the case of ‘Pandit Madan Swaroop Shrotia, Public Charitable Trust v. State of U.P. and others, JT 2000(3) SC 391 held that if the State did not take possession of the ‘surplus land’, tenure holder shall be entitled to the benefit of the Repeal Act. The Court observed that ‘possession’ means “possession on the spot and not symbolic”. 16. In a recent decision of Division Bench of this Court in the case of Kailash and another v. State of U.P. and others, 2006(1) AWC 497 , this Court following the ratio decidendi of the judgment in the case of State v. Hari Ram (supra) observed: “6. Even thereafter we wanted to verify the truth of actual physical possession and appointed a member of the bar as special officer to visit the spot and place a report before the Court under sealed cover. Such report categorically speaks that no actual physical possession has been taken by the State. A fake defence has been taken by the State that at the time of inspection no one was present on behalf of the Slate. But we find from the earlier order of the Court that in presence of all the parties when the order was passed, it was made clear that no further notice will be given but all will be present at the time of making inspection of the spot by the Special Officer. But we find from the earlier order of the Court that in presence of all the parties when the order was passed, it was made clear that no further notice will be given but all will be present at the time of making inspection of the spot by the Special Officer. Under the order dated 18th July, 2005, date and time were fixed by this Court. After opening the sealed cover and going through the report we have directed to circulate the report to give further opportunity to the parties to take appropriate step including exception to the report but State has not made any application taking exception to the report. They have relied upon their own record to establish the cause under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976. The law under Section 10 (5) of the Act is crystal clear that notice in writing is to be given to surrender or deliver the possession and if any body refuses or fails to comply, the authority may take possession of the vacant land under Section 10(6) of the Act. From the record we find that only a notice under sub-section (5) was received by one “Bachchan Lal”. According to the petitioners he has no authority to receive the notice. Even if a co-sharer cannot affect the right of the others in receiving such notice. In any event notice under the Principal Act upon one “Bachchan Lal” cannot help the cause of the respondents at present. 7. The respondents further wanted to say that the land has been mutated in their name, therefore, the same cannot be said to be land of the petitioners. We are all aware that mutation cannot give the title. Therefore, mere mutation cannot help the State for saying that the land is in their actual physical possession. Even the Division Bench of our High Court in the earlier unreported judgment held as follows : “Mere ‘mutation’ of entry in favour of State/persons in revenue records, is irrelevant/inconsequential so far as the applicability of Section 3 of Repeal Act is concerned.” 9. Learned Standing Counsel lastly contended that it is impossible for the State to keep actual physical possession of all the lands in question, which were previously vested by virtue of the surplus land under the Principal Act. The answer is hidden in such submission. Learned Standing Counsel lastly contended that it is impossible for the State to keep actual physical possession of all the lands in question, which were previously vested by virtue of the surplus land under the Principal Act. The answer is hidden in such submission. The obvious inference is that when vesting of land is lifted by the evaporation of law and the land under vesting has not been utilised for any purpose save and except putting sign board, if any, to show that it was earlier vested under the Principal Act, cannot be held by the State. 10. Hence, as per the interpretation of this Court in this matter as well as in the earlier occasion and having discussion on the similar point by another Division Bench of this Court as also by the Supreme Court either expressly or impliedly, we do not find any other reason other than to allow the writ petition safely." 17. In the instant case also an Advocate Commissioner was appointed vide order dated 13.5.2005, which reads : “Sri Ashok Kumar Maurya (employee of K.D.A. is present alongwith record of the said Development Authority. He states that he was posted four months back only and hence, he is not aware of the proceedings, which had taken place and culminated into Dakhalnama (purported to be date 13.3.99). There is some doubt about aforesaid date and it shall be examined at appropriate stage, viz. possession being taken, on 13.3.1999’ or 13.2.1999’, as there is some discrepancy on record. Sri Ashok Kumar Maurya is thus not in a position to disclose as to how ‘Anil Kumar’ (who took possession on behalf of K.D.A. and still working as Lekhpal with K.D.A.) got information to take possession, who authorized him to take possession on behalf of the K.D.A. etc. On Dakhalnama in question, we find, above Anil Kumar, after taking possession on behalf of K.D.A. has indicated no date under his signature. We find that even the officer, who purports to have delivered possession (on behalf of District Magistrate, Kanpur, i.e. Supervisor Naib Tahsildar has not disclosed the date). Court shall further hear the case on the next date fixed. In above circumstances, Anil Kumar, Lekhpal, K.D.A. is directed to appear in this Court on 23.5.2005 along with all records containing relevant documents in the light of the above observations. Court shall further hear the case on the next date fixed. In above circumstances, Anil Kumar, Lekhpal, K.D.A. is directed to appear in this Court on 23.5.2005 along with all records containing relevant documents in the light of the above observations. Learned Standing Counsel, is specifically directed to produce all records—copy of U.L.C. Forms as contemplated under Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 (see 1985 LLT part V page 197). We may note that earlier record produced on behalf of K.D.A. contains photo-stat copies of certain documents, original of which are part of record produced by the learned Standing Counsel for producing on next date fixed. Meanwhile parties shall maintain status quo till further orders. In the nature of this case, it is necessary to verify spot-position. We appoint Sri Ram Copal Tripathi, as Advocate Commissioner, to visit Kanpur atong with Sri Rahul Shukla and Sri P.K. Pandey Advocates on a date convenient to the counsels and to submit their report. For this purpose Sri Ramendra Asthana, Advocate undertakes to pay within 24 hours Rs. 15,000/- (Rs. 10,000/- as fees and Rs. 5000/- to cover to and fro train fare and misc.) Sri Ramendra Asthana further undertakes to inform Sri Ram Gopal Tripathi, Advocate Commissioner of the order passed today. Copy of this order shall be furnished to the Advocate Commissioner free of charges. Copy of the order be given before 18th May, 2005.” (Italicised to lay emphasis) 18. Advocate Commissioner submitted his report. No objections have been filed by any party. 19. Relevant extract of the said report of Advocate Commissioner dated 23.5.2005 is reproduced below : “6. That, on introduction, the identity of the person present near the spot was disclosed as follows : (i) Shri Govind Singh Khare, Advocate, D.G.C. (Special Counsel under Urban Land Ceiling). (ii) Shri Pradeep Kumar Srivastava, Advocate, (Addl. D.G.C.) (iii) Shri Ashok Kumar Misra. (Nodal Officer. J.E. Gazetted Urban Land Ceiling). (iv) Shri Jagat Singh, Surveyor, Urban Land Ceiling). (v) Shri Nand Kishore Agnihotri, S/o Shri Shyam Narain Agnihotri (Gram Pradhan, Makasoodabad). (vi) Shri Mayank Srivastava, Advocate, High Court, Lucknow. (Junior/Representative to Shri Ruhul Shukla, Advocate). (vii) Shri Ball Krishna S/o late Guru Prusad (Petitioner in the aforesaid case). 7. That, I requested them to take me to Araji No. 491. (iv) Shri Jagat Singh, Surveyor, Urban Land Ceiling). (v) Shri Nand Kishore Agnihotri, S/o Shri Shyam Narain Agnihotri (Gram Pradhan, Makasoodabad). (vi) Shri Mayank Srivastava, Advocate, High Court, Lucknow. (Junior/Representative to Shri Ruhul Shukla, Advocate). (vii) Shri Ball Krishna S/o late Guru Prusad (Petitioner in the aforesaid case). 7. That, I requested them to take me to Araji No. 491. At my request, the officials referred above accompanied by Sri Bal Krishna (Petitioner) and Shri Mayank Srivastava, Advocate took me to Araji No. 491 through a Kachcha Rasta as shown in the site plan.............................. 8. That, after reaching on the spot, I asked all the person present on the spot that whether they have any objection regarding the identity of Araji No. 491. All the person including the surveyor as well as Gram Pradhan of the village confirmed the identity of Araji No. 491. As such, I executed the commission and verified on the spot as follows: (i) I found a boring towards South-Eastern corner of Araji No. 491, I also found several Bundle of wheat crop lying all over Araji No. 491 at number of places. On being counted, the number of Bundle were found to be 158 only. I have also found that Araji No. 491 is being used for cultivation purposes. On being asked to whom Bundle of wheat crop belonged, I was told by petitioner that they belong to him. Petitioner has also informed me that over Araji No. 491 he is in possession and doing the Agricultural work. (ii) I did not find any type of construction or any boundary wall over/around of Araji No. 491. (iii) That, between road and Araji No. 491 towards North side, there exists plot No. 493 and 492. Plot No. 492 appeared to be used for cultivation purposes. No construction exists over the plot No. 492. On plot No. 493 there existed a large size of Gadha. There exists lintel supported by some pillars towards northern abutting road. (iv) That. at North-West side of the Araji No. 491, plot No. 481 exists which is tying as parti. There exists a boundary wall on the aforesaid plot upto some distance abutting road. A kachcha Rasta exists towards Eastern portion of the said plot. (v) That there exists parti land towards Southern side of Araji No. 491, I found some craters (Gadha) over the said parti land at some place. There exists a boundary wall on the aforesaid plot upto some distance abutting road. A kachcha Rasta exists towards Eastern portion of the said plot. (v) That there exists parti land towards Southern side of Araji No. 491, I found some craters (Gadha) over the said parti land at some place. (vi) That towards Eastern side of the Araji No. 491 there exists Araji No. 495 and 496 being used for cultivation purposes. (Italicised by us to lay emphasis) 20. On perusing the report of the Advocate ‘Commissioner’ this Court passed order dated 26.5.2005 relevant extract of it reads; "................................... Ajai Kumar Verma, Junior Engineer, Kanpur Development Authority is present and identified by Sri Anurag Khanna, Advocate. Ajai Kumar Verma is confronted with the Commissioner’s site plan and put a question whether the boundary wall indicated therein is correctly shown or not and if not, what is the extent of boundary wall. Ajai Kumar Verma said that the structures scribed as linter supported by pillars and the other structures scribed as boundary walls are identical. He Later on he has changed his statement. He appears to be telling a lie before, the Court and no reliance can be placed upon his statement. Sri Ashok Kumar Misra, Junior Engineer, Urban Land Ceiling, Kanpur Nagar has placed Register containing ULC Form I, Register shows that the date of service of the notice under Section 10(5) of the Principal Act, 1976 has not been shown, Ashok Kumar Misra informed that notice is sent from the office of the Sub-Divisional Magistrate/Collector and it was not ascertained whether noitice as served or not Register purported to be original Register, ULC Form III has also been produced. We find that the original title on the binding has been covered by a new slip. The relevant entry shown to us purports to be at page 3476 at Serial No. 754. Curiously, we detected that at page 337 of the said Register at Serial No. 4 there is an entry No. 4 to 99. The explanation given by the official that the said entry at serial No. 754 relates to Barasirohi cannot be accepted, particularly, when the above recent entry for our purposes at serial No. 754 at page 347 also relates to Barasirohi. The explanation given by the official that the said entry at serial No. 754 relates to Barasirohi cannot be accepted, particularly, when the above recent entry for our purposes at serial No. 754 at page 347 also relates to Barasirohi. There is no explanation as to how entry of 14.2.1999 finds place at page No. 337 i.e. earlier in point of time than the relevant entry with respect to the plot in dispute at serial No. 747. It is apparent that the entries have been interpolated or at least it is clear that entries are not maintained in regular course of business and the Register has been built up subsequently. The record placed by A.K. Verma also contains letter dated 19.1.2005 signed by A.K.Verma (Junior Engineer) K.D.A. purported to be person delivering possession. Representative of the Managing Director of ELDECO also purported to have taken possession. This letter has been countersigned by Assistant Engineer and Executive Engineer Ajay Singh of the Kanpur Development Authority. This letter scribes that physical possession of 17.016 acres of land has been given on 4.1.2005 to ELDECO...................................... Sri Ram Gopal Tripathi, Advocate Commissioner has submitted his report in pursuance of our order. The said report prepared at the spot has been counter signed by Pradeep Srivastava, A.D.G.C., Govind Singh Khare, D.G.C., Ashok Kumar Misra, Junior Engineer, Urban Land Ceiling as well as Jagat Singh Surveyor besides the signatures of Gram Pradhan as well as one Bal Kishan as witnesses. At page 15 of the report is site plan. A perusal of the report reveals that there existed boring and a tube well on the plot in question and that wheat crop sown and cut was stored in the field. In view of the Commissioner’s report and the fact admitted by the officers of the Kanpur Development Authority and the Ceiling Authorities we are convinced that the land is being used for agricultural purposes. Respondents have not claimed on record or otherwise even today before us that they have been carrying on agricultural activities. It is, therefore, clear that the petitioner had sown wheat crop. He is allowed to dispose of the same. It is said to be cut and lying in the field. Respondents or any other authority, person their assignee, agents, representative etc. It is, therefore, clear that the petitioner had sown wheat crop. He is allowed to dispose of the same. It is said to be cut and lying in the field. Respondents or any other authority, person their assignee, agents, representative etc. are restrained from interfering with the possession of the petitioner or from making any attempt of any kind to change the nature of land. ………………………………………” (Italicised by us to lay emphasis) 21. The record shows that the petitioner was never served with Draft Statement (declaring the land as surplus under the Principal Act. There is no material to show that notice was ever dispatched from the office of S.D.M. or Collector as stated by Ashok Kumar Mishra, J.E. Urban Land Ceiling, and also observed in our order dated 26.5.2005 (Quoted above). Respondents have failed to show that the petitioner was ever dispossessed ‘de facto’ from the land in question. Entry in revenue record is nothing but mere paper work. ULC Form I and III have not been maintained properly and in entries thereof one finds interpolation. The petitioner promptly on coming to know of declaration of surplus land filed this petition. The delay in approaching this Court cannot be said to be deliberate/intentional, seeing that the petitioner had no knowledge of the impugned order till his dispossession from the land in question was threatened by the respondents. 22. Our order dated 26.5.2005 (referred to above) refers to original register and reflects that there are certain interpolations at relevant places in the Register (contained in ULC Form III); in any case, said Register is not maintained in normal and regular course of business. The Commissioner’s report reveals that the petitioner is in possession of the land in question and is using it for agricultural purposes. The petitioner had sown wheat crop which was lying cut on the spot during pendency of writ petition. It is not the case of the respondents that agricultural crop was sown by them or their officials, agents or servants. It is also not the case of the respondents that petitioner illegally/unlawfully took possession after he was dispossessed on spot in pursuance to the proceedings under the Principal Act. Added to it, no respondent has controverted the report of the Advocate Commissioner nor any party has preferred to file objection against it. 23. It is also not the case of the respondents that petitioner illegally/unlawfully took possession after he was dispossessed on spot in pursuance to the proceedings under the Principal Act. Added to it, no respondent has controverted the report of the Advocate Commissioner nor any party has preferred to file objection against it. 23. In view of the above, we have no hesitation to conclude that the petitioner continued to be in possession of the land in question throughout. He was not served with the order/Draft statement declaring the land as ‘surplus’. The petitioner is entitled to the benefit of the Repeal Act. Declaration of an area of 6272.17 Sq. Mts. of plot No. 491 village Bara Sirohi Tehsil and District Kanpur Nagar ‘surplus land’ under Principal Act is declared illegal and inoperative. The Respondents, their servants, agents, assignees, nominees, transferees etc. (including ELDECO-Applicant/Respondent in the writ petition), are restrained from interfering with the possession of the petitioner over said plot No. 491 (total area 7272.17 Sq. Mts.) situate in village Bara Sirohi, Kanpur Nagar except in accordance with law. The concerned authorities/Respondents shall correct the relevant revenue records accordingly. 24. Eldeco Township & Housing Ltd. filed impleadment application claiming transfer from K.D.A. It submitted that no separate counter affidavit shall be filed by it and, therefore, it was permitted to be heard under Chapter XXII Rule 5 of Rules of the Court. We find that there is nothing on record before us to show that Eldeco was granted ‘lease rights’ to raise constructions in pursuance to plans sanctioned by the State Government as contemplated under Section 3 of the Principal Act. ELDECO has placed no ‘additional-pleading’ or attempted to bring on record material to contest the claim of the petitioner. ELDECO claims right through KDA, which has been heard. ELDECO has no independent rights. It is made clear that this judgment is confined only to the said plot No. 491 village Bara Sirohi, Kanpur Nagar belonging to the petitioner and shall not be treated or read as interfering with the rights of ELDECO with respect to the other land/area transferred to it by KDA. 25. Original record kept in sealed cover was opened under our order and returned to the Standing Counsel, Sri Vishnu Pratap. 26. Writ petition is allowed subject to the above observations. 27. No order as to costs as the petitioner did not press for it. ———