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2010 DIGILAW 636 (ALL)

RAM CHANDRA PANDEY v. STATE OF U. P.

2010-02-18

RAN VIJAI SINGH, VINEET SARAN

body2010
JUDGMENT By the Court.—The brief facts of this case are that the petitioner claims himself to be the owner of plot Nos. 96 and 179 situated in village Purwa Nankari, Tehsil Sadar, District Kanpur Nagar which he succeeded from his grand father late Dhani Ram. In the year 1996 his name was also mutated in the revenue record (Khatauni) in the mutation proceedings held after the death of Dhani Ram, who died in the year 1995. The cultivatory possession over the land has been pleaded in paragraph 5 of the writ petition. The extract of Khatauni showing the land of plot Nos. 96 and 179 in the name of the petitioner has been brought on record as Annexure-1 to the writ petition. It has been stated that the land revenue has been paid by the petitioner upto 22 June, 2008. It has also been stated in paragraph 7 of the writ petition that in the life time of late Dhani Ram, Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the ‘Act’) came into force and late Dhani Ram had submitted return under Section 6 of the Act declaring the land owned and possessed by him at the time of commencement of the Act. The Competent Authority, thereafter rejected the objection filed to the notice issued under Section 8 (3) of the Act and vide order dated 18.5.1979 declared certain land belonging to late Dhani Ram as surplus. In paragraphs 11,12, & 13 of the writ petition it is stated that the Competent Authority neither took possession of the excess land in the life time of late Dhani Ram, nor it proceeded to take possession of the excess land even from the petitioner and the petitioner continues to be in actual physical possession even after the commencement of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 which was made effective in the State of Uttar Pradesh on 18.3.1999. In paragraphs 14 and 15 of the writ petition it is stated that Tehsildar Kanpur Sadar, vide an ex parte order dated 9.2.2004, has expunged the name of the petitioner from the Khatauni of the Fasli years 1410-1415 and recorded the same in the name of State of U.P. The petitioner filed revision under Section 219 of U.P. Land Revenue Act, which has been dismissed by the Additional Commissioner, Kanpur Division, Kanpur on 18.9.2009 as not maintainable. Thereafter the petitioner requested the Competent Authority to extend the benefit of Repeal Act but it was not done. The petitioner thus filed this writ petition with the prayer for a direction in the nature of mandamus commanding the respondents not to interfere in the actual physical possession of the petitioner over the Khasra Plot Nos. 96 and 179 measuring 0.533 hectare and 0.133 hectare respectively situated in Village: Purwa Nankari, Tehsil: Sadar, Disrict: Kanpur Nagar and restore the entries of the petitioner’s name in the revenue record. 2. A counter-affidavit has been filed by the State respondent. In para 4 of the counter-affidavit it is stated that after giving the benefit of 1000 square meter land, 14423.28 square meter of Arazi Nos. 179,61,96,180,88 belonging to the petitioner situated in village Purwa Nankari, Kanpur was proposed to be declared as surplus and it has further been stated that the notification under Section 10 (3) of the Act was issued on 28.10.1980 which was published in the Government Gazette on 19.11.1983. Thereafter a notice under Section 10(5) of the Act was issued on 15.12.1984 for handing over/ transfer of possession of the surplus land, which was served through registered post and when the land holder himself failed to hand over the possession of the surplus land, the Tehsil Staff went on the spot and took over the possession of the surplus land on behalf of the State of U.P. on 2.4.1992. After taking possession of the land, it was transferred in favour of the Kanpur Development Authority in the year 2003. It has also been stated in the counter-affidavit that the proceedings for payment of compensation is under consideration. Photo copy of possession memo 2.4.1992 alongwith notice under Section 10(5) of the Act has been brought on record as Annexure C.A-1 to the counter-affidavit. 3. It has also been stated in the counter-affidavit that the proceedings for payment of compensation is under consideration. Photo copy of possession memo 2.4.1992 alongwith notice under Section 10(5) of the Act has been brought on record as Annexure C.A-1 to the counter-affidavit. 3. A rejoinder affidavit has been filed by the petitioner wherein it is stated that after the death of his grand-father, the name of the petitioner was recorded in the khatauni in the year 1996 and that it has wrongly been stated in the counter-affidavit that the notice under Section 10 (5) of the Act was issued on 15.2.1984 and possession of the excess vacant land was taken on 2.4.1992 and that no notice issued under Section 10 (5) of the Act has been brought on record and the alleged notice, which has been filed with counter-affidavit, was never served and is not on the prescribed proforma. The copy of the document filed as Annexure CA-1 is merely a letter/reminder sent to the Tehsildar on 14.2.1992 and not a notice to the petitioner. The petitioner has brought on record the photographs showing some construction over the land in dispute to show that he continues to be in possession over the land in question. 4. In paragraph 5 of the rejoinder affidavit, it has been stated that the respondents have not shown or filed any order which is required to be passed under Section 10(6) of the Act after the alleged notice was issued by the Competent Authority under sub-section (5) of Section 10 of the Act, meaning thereby that the notice under Section 10(5) of the Act was not acted upon. The memo conveying the land to the Kanpur Development Authority on 6.1.2003 is a paper work and does not affect the right of the petitioner who had perfected his continued possession even after the repeal of the Urban Land (Ceiling and Regulation) Act, 1976 in the year 1999. 5. We have heard Sri S.V. Goswami, learned counsel for the petitioner as well as learned Standing Counsel appearing for the State-respondents and have perused the record. Pleadings between the parties have been exchanged and with consent of learned counsel for the parties, this writ petition is being disposed of finally at this stage. 6. 5. We have heard Sri S.V. Goswami, learned counsel for the petitioner as well as learned Standing Counsel appearing for the State-respondents and have perused the record. Pleadings between the parties have been exchanged and with consent of learned counsel for the parties, this writ petition is being disposed of finally at this stage. 6. Sri S.V. Goswami, learned counsel for the petitioner has submitted that the petitioner is still in possession over the disputed land, therefore, the entire proceeding stood abated on 18.3.1999 and any entry made subsequent to 18.3.1999 in the revenue record in favour of the State Government is totally illegal and without jurisdiction. In the submissions of Sri Goswami the word ‘possession’, used in Section 3 of the Repeal Act means actual physical possession and not symbolic possession. In his submission, as no physical possession has been taken, therefore, the respondents are now debarred from proceeding any further on the basis of the entry made in the revenue record in the year 2004. 7. Refuting the submissions of learned counsel for the petitioner, learned Standing Counsel appearing for the State respondents has submitted that possession has been taken by the State Government in accordance with law and thereafter the land was transferred to Kanpur Development Authority, and that the stand taken by the petitioner is of no consequence as after issuing notice under Section 10(5) of the Act, when the petitioner refused to hand over the possession, the Tehsil authorities went on the spot and took over possession in accordance with law. In his submission, the writ petition lacks merit and deserves to be dismissed. 8. Before entering into the controversy involved in this case, we feel it necessary to look into the object of the commencement of the Urban Land (Ceiling and Regulation) Act, 1976 and the purpose of its repeal through Act No. 15 of 1999 known as “ Urban Land (Ceiling and Regulation) Repeal Act,1999”. 9. It appears that after imposition of the ceiling on agricultural land by the State Governments, the demand for imposing of ceiling on urban properties was also realised and with the growth of population and increasing urbanization, need for orderly development of urban areas had been felt. 9. It appears that after imposition of the ceiling on agricultural land by the State Governments, the demand for imposing of ceiling on urban properties was also realised and with the growth of population and increasing urbanization, need for orderly development of urban areas had been felt. It was, therefore, considered necessary to take measures for exercising social control over the scarce resources of the Urban land with a view of insuring its equitable distribution amongst various sections of the society. In other words, to put a ceiling limit to regulate construction of buildings to prevent urban land in the hands of few, to check speculation/undesirable profiteering and to bring equitable distribution of urban land in order to subserve the common good, Act No. 33 of 1976 was enacted. 10. After lapse of some time, few States realised that the ‘Principal Act’ had failed to achieve what was expected of it and passed a resolution to repeal the Act. It is thereafter, the Parliament had come to conclusion to repeal the Act. For better appreciation, the statement of objects and reasons of Act No. 15 is reproduced below : “The Urban Land (Ceiling and Regulation) Act, 1976 was passed when Proclamation of emergency was in operation with a laudable social objective in mind. The said Act was passed pursuant to resolution passed by the State Legislatures under Clause (1) of Article 232. Unfortunately public opinion is nearly unanimous that the Act has failed to achieve what was expected of it. It has on the contrary pushed up land prices to unconscionable levels, practically brought the housing industry to a stop and provided copious opportunities for corruption. There is wide spread clamour for removing this most potent clog on housing.” It was primarily for these reasons that the Urban Land (Ceiling And Regulation) Repeal Act, 1999 came into force. For proper appreciation, relevant Sections 2 to 4 of the Repeal Act are reproduced below: 2. Repeal of Act 33 of 1976- The Urban Land (Ceiling and Regulation) Act,1976 (hereinafter referred to as the Principal Act) is hereby repealed. 3. For proper appreciation, relevant Sections 2 to 4 of the Repeal Act are reproduced below: 2. Repeal of Act 33 of 1976- The Urban Land (Ceiling and Regulation) Act,1976 (hereinafter referred to as the Principal Act) is hereby repealed. 3. Saving.—(1) The repeal of the principal Act shall not affect— (a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; (b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary; (c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20. 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 but possession of which has not been taken over by the State Government or any person duly authorised 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 be restored 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 Sections 11, 12, 13 and 14 of the Principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf by the Competent Authority.” 11. From the bare perusal of the objects of the Principal Act, one thing is apparent that the purpose which was intended to be achieved, i.e., to ‘put a Ceiling on urban land’, to regulate construction of building, to prevent the concentration on urban land in the hands of few, to check speculations and profiteering in property dealings and to bring about equitable distribution of urban land in order to sub serve common good, has failed. This may be due to lack of will or casual approach of the Government to achieve the objective of the commencement of the Principal Act or prevailing will of urban mighty people having upper hand in the system, which has necessitated to enact the Repeal Act. This we have noticed only because of reason that Principal Act (The Urban Land (Ceiling and Regulation) Act, 1976) came into force after a long delay on the line of Act known as the ‘Uttar Pradesh Imposition of Ceiling on Land Holdings Act,1960’ and the objective of that Act has been achieved and the Act is still in force. 12. However, this is not the matter of concern here, as we are supposed to interpret a beneficial legislation meant for retaining the possession of the surplus land by the original land holders who were in possession of the surplus land at the time of the Repeal Act. 13. Here in the present case, the controversy in hand moves around the word ‘possession’. What does possession mean and what is the object of the commencement of the Act No. 15 of 1999 (Repeal Act), and what was the object of the Principal Act would also be relevant. 14. The word ‘possession’ for the first time has been used in sub-sections (5) and (6) of Section 10 of the Principal Act. What does possession mean and what is the object of the commencement of the Act No. 15 of 1999 (Repeal Act), and what was the object of the Principal Act would also be relevant. 14. The word ‘possession’ for the first time has been used in sub-sections (5) and (6) of Section 10 of the Principal Act. For appreciation, entire Section 10 is quoted below: Section 10: Acquisition of vacant land in excess of ceiling limit.—(1) As soon as may be after the service of the statement under Section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that- (i) such vacant land is to be acquired by the concerned State Government; and (ii) the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed. (2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit. (3) At any time after the publication of the notification under sub-section (1) the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified. (4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3)— (i) no person shall transfer by way of sale,mortgage,gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and (ii) no person shall alter or cause to be altered the use of such excess vacant land. (5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice. (6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary. Explanation.—In this section, in sub-section (1) of Section 11 and in Sections 14 and 23,”State Government’, in relation to— (a) any vacant land owned by the Central Government, means the Central Government; (b) any vacant land owned by any State Government and situated in the Union territory or within the local limits of a cantonment declared as such under Section 3 of the Cantonment Act,1924 (2 of 1924), means that State Government. 15. From the bare reading of sub-section (5) of Section 10, it transpires that after the land is vested in the State Government under sub-section (3), the Competent Authority may, by notice in writing, order person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf, within thirty days of the service of the notice. In case of non delivery of the possession of the surplus land, the Competent Authority is empowered to take possession of the vacant land under sub-section (6) of Section 10 and for that purpose, authorities may use such force as may be necessary. 16. In the present case, the petitioner claims that he is still in the possession over the land which was declared surplus. In support of the same, the extract of Khatauni and Khasra as well as payment of revenue receipts upto June 2008 have been brought on record. These averments have been made in paragraphs 5 and 6 of the writ petition, which have been replied by the State respondent in paragraph 7 of the counter-affidavit, wherein it has been stated that the State Government took possession on 2.4.1992 and thereafter the entire land in question was transferred in favour of Kanpur Development Authority, Kanpur and in case the petitioner is doing any agricultural activities over the land in question, the same is illegal and unauthorised. It has also been stated that after ‘Amaldaramad’ of the land in question in the name of ‘Urban Land Ceiling’ in the revenue records in place of petitioner’s, the petitioner had no concern whatsoever on the land in question and recording of petitioner’s name is wholly ineffective and inoperative under the provisions of Section 10(4) of the Act. For better appreciation, paragraph 7 of the counter-affidavit is quoted below. “That the contents of paras 3,4,5 and 6 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. It is stated that over the declared surplus land, after completion of the entire formalities and proceedings under various Sections of the Act, the possession was taken on behalf of the State Government on spot on 2.4.1992 and thereafter, the entire land in question was transferred in favour of Kanpur Development Authority, under the terms, conditions and provisions contained in various relevant G.Os, issued in this regard. It is denied that the petitioner is the bhumidhar of land of plot Nos. 96 and 179 and he is not in actual cultivatory possession over the said plots. In case, the petitioner is doing any agricultural activities over the land in question, the same is wholly illegal and unauthorised. It is denied that the petitioner is the bhumidhar of land of plot Nos. 96 and 179 and he is not in actual cultivatory possession over the said plots. In case, the petitioner is doing any agricultural activities over the land in question, the same is wholly illegal and unauthorised. After Amaldaramad of the land in question in the name of ‘Urban Land Ceiling’ in the revenue records in place of petitioner’s name, the petitioner has no concern whatsoever with the land in question. The petitioner has stated that Amaldaramad was made in his favour as successor, but the same is wholly ineffective and inoperative under the provisions of Section 10 (4) of the Act”. The contents of above paragraph have been denied in rejoinder affidavit. 17. In the Principal Act, no specific provision has been given for taking over possession of the surplus land. However, the State Government, while exercising its power under Section 35 of the Principal Act, has issued certain directions named as “The Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of amount and Allied Matters) Directions, 1983”, which are reproduced below : Directions issued by the State Government under Section 35 of the Act,1976. “In exercise of the powers under Section 35 of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No. 32 of 1976), the Governor is pleased to issue the following directions relating to the powers and duties of the Competent Authorities in respect of the matters connected with the mode of payment of amount referred to in Section 11 of the aforesaid Act to the person or persons entitled thereto: 1. Short title, application and commencement.—These directions may be called the Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983; (2)The provisions contained in this direction shall be subject to the provisions of any directions or rules or orders issued by the Central Government with such directions or rules or orders. (3) They shall come into force with effect from the date of publication in the Gazette. 2. Definition.— .............. 3. Procedure for taking possession of vacant land in excess of Ceiling Limit.—(1) The Competent Authority will maintain a register in Form No. ULC-1 for each case regarding which a notification under sub-section (3) of Section 10 of the Act is published in the Gazette. 2. Definition.— .............. 3. Procedure for taking possession of vacant land in excess of Ceiling Limit.—(1) The Competent Authority will maintain a register in Form No. ULC-1 for each case regarding which a notification under sub-section (3) of Section 10 of the Act is published in the Gazette. (2) An order in Form No. ULC-II will be sent to each landholder as prescribed under sub-section (5) of Section 10 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No. ULC-1. (3) On possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) of Section 10 of the Act, entries will be made in a register in Form ULC-III and also in Column 9 of the Form No. ULC-I. The Competent Authority shall, in token of verification of the entries, put his signature in Column II of Form No. ULC/1 and Column 10 of Form No. ULC-III. FORM NO. U.L.C I Register of Notice under Sections 10(3) and 10(5) Serial Serial No. of Case Date of Notification Land to be acquired No. Register of Number under Section 10(3) Village/Mohall Receipt Sl.No. of Register of taking possession 1 2 3 4 5 Area Date of Publication Date of notice under Section 10(5) of Notification under Section 10(3) Date of service of notice In Gazette Date of notice/Date of Service. 6 7 8 Date of taking Remarks Signature of Competent Authority. over possession 9 10 11 FORM NO. U.L.C - II Notice Order under Section 10(5) (See Clause (2) of Direction (3) In the Court of Competent Authority U.L.C............................................. No....................Date...................Sri/Smt...........T/o .................................... In exercise of the powers vested under Section 10(5) of the Urban Land Ceiling and Regulation Act, 1976 (Act No. 33 of 1976), you are hereby informed that vide Notification No. .................. dated ............... under Section 10(1) published in Uttar Pradesh Gazette dated.............following land has vested absolutely in the State free from all encumbrances as a consequence Notification under Section 10(3) published in Uttar Pradesh Gazette, dated.......... Notification No. ............... dated........................ with effect from.................. dated ............... under Section 10(1) published in Uttar Pradesh Gazette dated.............following land has vested absolutely in the State free from all encumbrances as a consequence Notification under Section 10(3) published in Uttar Pradesh Gazette, dated.......... Notification No. ............... dated........................ with effect from.................. You are hereby ordered to surrender or deliver the possession of the land to the Collector of the District authorized in this behalf under Notification No. 324/II/27-U.c. 77 dated February 7,1977, published in the Gazette, dated March 12, 1977, within thirty days from the date of receipt of this order otherwise action under sub-section (6) of Section 10 of the Act will follow. Description of vacant land Location Khasra number identification Area Remarks 1 2 3 4 Competent Authority ............................................. ............................................. No. Dated..................................... Copy forwarded to the Collector......................with the request that action for immediate taking over of the possession of the above detailed surplus land and its proper maintenance may, kindly be taken and intimation be given to the undersigned alongwith copy of certificate to verify. Competent Authority. .............................. .............................. FORM NO. U.L.C. III Register for Land of which possession has been taken under Section 10(5) or 10(6) (See Clause (3) of Direction 3) Serial Case No. Name of land Date of service of Date of taking over No. holder & address Notice under possession under Section 10(5) Section 10(5) or under Section 6 1 2 3 4 5 Khasra No. of Area Zone/Category Rate Signature of Competent the Land acquired 6 7 8 9 10 NOTE(1) There directions are being issued with the concurrence of Vitta Vibhag vide their G.O. No. FA-1-2012/X-1983, dated December 13, 1983.” 18. In the above background, the Repeal Act has to be interpreted in the present context. Sub-sections 1 and 2(a) of Section 3 of the Repeal Act provide that repeal of the Principal Act shall not affect where any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the Principal Act but the possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority. 19. Section 4 of the Repeal Act talks about the abatement of legal proceedings after repeal of the Act. 19. Section 4 of the Repeal Act talks about the abatement of legal proceedings after repeal of the Act. The proviso to this section provided that this section shall not apply to the proceedings relating to Sections 11,12,13 and 14 of the Principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf by the Competent Authority. 20. Now, in the present case, it has been submitted by learned counsel for the petitioner that as the possession of the land has not been taken, therefore, in view of Section 3/4 of the Repeal Act, the entire proceedings have abated and the respondents are now debarred from proceeding any further. 21. From the perusal of provisions contained under sub-sections (5) and (6) of Section 10 read with Sections 3 and 4 of the Repeal Act 1999 and directions with regard to the procedure for taking over the possession, it transpires that after the land is vested under sub-section (3) of Section 10 of the Principal Act, the Competent Authority is obliged to issue notice in writing, ordering any person who may be in possession of such vacant land to surrender or deliver the possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of notice and, if any, person refuses or fails to comply with an order made under sub-section (5), the Competent Authority may take possession of the vacant land or cause to be taken to the concerned State Government or to any person duly authorised by such State Government in this behalf, may for that purpose use such force as may be necessary. Under the Directions of 1983 (supra), various forms of notices have been prescribed. Form U.L.C.-II is meant for notice under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976. Apart from the format of the notice, the Competent Authority is required to forward a copy of the same to the Collector with the request that action for immediate taking over of the possession of the above detailed surplus land and its proper maintenance may, kindly be taken and intimation be given to the undersigned alongwith copy of certificate to verify. 22. 22. Here, in the present case, according to the respondents’ own case taken in the counter-affidavit, notice under Sub-section (5) of Section 10 was issued on 15.12.1984. It is clear that late Dhani Ram, from whom the petitioner has succeeded the property, had not surrendered the surplus land in the year 1992. As per the scheme of the Act, after issuance of notice under Sub-section (5) of Section 10 when the excess vacant land is not voluntarily surrendered, procedure under Sub-section (6) of Section 10 ought to have been followed and thereafter only possession could have been taken from the petitioner. 23. We have summoned the original record and on perusal of the same we have found that no such procedure prescribed under Section 10(6) of the Act had ever been followed or there was any force used for taking over the possession. From the original record, it is clear that the possession memo has been prepared under the signature of the Prescribed Authority and two other Government Officers. It is also not on the prescribed form U.L.C.-III. The register in which possession has been recorded under the Act has not been produced before us. Even otherwise, the alleged notice under Sub-section (5) of Section 10, which has been brought on record as Annexure CA-1 to the counter-affidavit, goes to show that the same is not a notice on the proper proforma but it is in the form of letter addressed to the Tehsildar, Kanpur Nagar by the Prescribed Authority, Urban Land Ceiling Kanpur. From the above, it is clear that no proper procedure for taking over possession was ever followed by the authorities and the same is merely a paper transaction, which is not even in accordance with the procedure prescribed under law. 24. Now, in this background and looking into the object of the repeal of the Principal Act, we have to find out whether physical possession of the surplus land has ever been taken by the State Government. 25. As we have already observed, notice under Sub-section (5) of Section 10 was issued in the year 1984. The last portion of the notice on form No. ULC-II provides that the copy of the same should be forwarded to the Collector with the request to take immediate action for taking over the possession of the detailed surplus land, which has not been done. The last portion of the notice on form No. ULC-II provides that the copy of the same should be forwarded to the Collector with the request to take immediate action for taking over the possession of the detailed surplus land, which has not been done. It further transpires that according to their own case, after the issuance of the said notice, the respondents have taken more than seven years in taking over the alleged possession of the land in question, although the same has been denied by the petitioner. Annexure CA-1, which the respondents say is a notice, is merely a letter to the Tehsildar and cannot be termed as a notice under Section 10(5) of the Act. 26. With regard to the taking over the possession of the surplus land, as we have already noticed, under the Act there is no specific provision or mode prescribed for taking over possession except procedure as contained under sub-sections (5) and (6) of Section 10 of the Parent Act and direction issued in the year 1983. Therefore, we take shelter of few judicial pronouncements where this aspect of the matter has been dealt with in the cases of Land Acquisition Act as well as Urban Land Ceiling Act. 27. In Balmokand Khatri Educational and Industrial Trust v. State of Punjab (1996) 4 SCC 212 : ( AIR 1996 SC 1239 ), it was held that: “It is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the punchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto the retention of possession would tantamount only to be illegal or unlawful possession. 28. Same view was reiterated in State of Tamil Nadu v. Mahalakshmi Ammal (1996) 7 SCC 269 ; (AIR 1996 SC 866) and Tamil Nadu Housing Board v. A.Vishwam (1996) 8 SCC 259 ; ( AIR 1996 SC 3377 ). 29. In Balwant Narain Bhagde ( AIR 1975 SC 1767 ), possession was meant as ‘possession on the spot’ and not ‘symbolical’ one. 30. This view has also been taken by this Court in the case Chabi Nath v. State of U.P., 2005 (59) ALR 413 and Dr.(Smt. Raj Kumari Mehrotra v. State of U.P., 2009 (1) ADJ 583 . 31. In Balwant Narain Bhagde ( AIR 1975 SC 1767 ), possession was meant as ‘possession on the spot’ and not ‘symbolical’ one. 30. This view has also been taken by this Court in the case Chabi Nath v. State of U.P., 2005 (59) ALR 413 and Dr.(Smt. Raj Kumari Mehrotra v. State of U.P., 2009 (1) ADJ 583 . 31. In the background of the facts of this case and the submissions made by the learned counsel for the parties as well as on perusal of the record produced by the learned Standing Counsel, especially the document by which possession of the land is said to have been taken from the grand-father of the petitioner late, Dhani Ram, we are not satisfied that actual physical possession of the plots in question was ever taken by the State Government. From the record, we find that the memo of possession prepared in the present case is nothing but a mere noting of three officials of the State Government made on 2.4.1992, which is also not on the proper format and appears to have been prepared by the State officials in their office, and as such no authenticity can be attached to the same. On such memorandum, there is no signature of the grand-father of the petitioner (late Dhani Ram) or any independent person to show that actual physical possession had been delivered to the State Government. More so, the name of late Dhani Ram continued in the revenue record till his death in the year 1995 and thereafter the name of the petitioner was admittedly recorded in the Khasra and Khatauni in the year 1996, which continued so till the passing of the ex-parte order in 2004, where after also the land revenue was being accepted from the petitioner. 32. The Apex Court in the case of State of Tamil Nadu v. Mahalkshmi Ammal, (1996) 7 SCC 269 , has clearly held that “possession of the acquired land would be taken only by way of memorandum, panchnama, which is a legally accepted norm.” 33. In the present case, we do not find from the record that any proper memorandum or panchnama was prepared at the time when the alleged possession of the land is said to have been taken from the tenure holder. In the present case, we do not find from the record that any proper memorandum or panchnama was prepared at the time when the alleged possession of the land is said to have been taken from the tenure holder. Sub-Section 2(a) of Section 3 of the Repealing Act clearly provides that where the possession of the land has not been taken over, the said land shall not vest in the State despite the proceedings having been drawn. 34. For the reasons given hereinabove, we do not find from the record or from the papers filed alongwith the counter-affidavit that actual physical possession of the land in question was ever taken by the State Government. Mere symbolic possession, as is said to have been taken by the State Government on 2.4.1992 would not amount to actual physical possession been taken from the petitioner or his grand father, late Dhani Ram. Since we are of the view that physical possession has not been taken by the State Government, after the repeal of the Urban Land (Ceiling & Regulation) Act, 1976 by Act No. 15 of 1999, the petitioner would be entitled to the benefit of Section 3 of Act 15 of 1999. 35. This writ petition thus stands allowed. A writ of mandamus is issued directing the respondents not to interfere in the actual physical possession of the petitioner over the Khasra Plot Nos. 96 and 179 measuring 0.533 hectare and 0.133 hectare respectively situated in Village: Purwa Nankari, Tehsil: Sadar, District: Kanpur Nagar and the respondents are also directed to restore the entries of the petitioner’s name in the revenue records. There shall be no order as to costs. —————