JUDGMENT By the Court.—We have heard Shri B.D. Mandhyan, learned Senior Counsel assisted by Shri Satish Mandhyan, for the petitioners. Learned Standing Counsel appears for the State-respondent. Shri P.K. Singh, learned counsel appears for the other respondents. 2. In the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 (the Act), (since repealed) in Case No. 240/4539, 26978 sq. mtrs. of land was proposed as surplus land in the hands of Late Shri Jumma son of Shri Lalji resident of Kanjari Sarai, Moradabad, under Section 8 (3) in the Draft Statement dated 27.6.1977. Late Shri Jumma filed objections on 29.7.1977 on which under Section 8 (4) the Competent Authority by his order dated 13.2.1978 declared, the proposed area as surplus land in Village Majhola in Gata No. 750. A notification under Section 10 (1), and thereafter a notification under Section 10 (3) was published in the Official Gazette on 26.12.1978 and 22.9.1989 respectively. A directory notice was issued on 29.1.1980 under Section 10 (5) of the Act for handing over possession, in reference to which the Tehsildar, Moradabad took over the possession of the vacant land on 26.3.1980 in favour of the State Government. 3. On the request of Late Shri Jumma, an order was passed by the Competent Authority on 28.4.1986, under Section 45 of the Act to change the direction of the surplus land in the plot from east to west. The direction was consequently changed after which a notice was issued under Section 10 (5) of the Act, in pursuance to which the Tehsildar, Moradabad on 20.1.1987 took over possession of the land in favour of the State Government. The State Government was recorded as owner of the land in the revenue records. 4. Late Shri Jumma filed an Appeal No. 27 of 1988 in the Court of District Judge, against the orders rejecting his application dated 23.1.1986 and 25.3.1987, alleging that he had only half share in 16.22 acres in Khasra No. 750. The rest of the half share was owned by his brother Mangu. In the ceiling case only 1780.68 sq. mtrs. of land was left towards south, whereas the entire 2000 sq. mtr. land was to be released. He further stated in the application that he has not made any prayer to change the direction of the land nor appointed Shri Shailendra Singh, Advocate for giving applications for that purpose. In the ceiling case only 1780.68 sq. mtrs. of land was left towards south, whereas the entire 2000 sq. mtr. land was to be released. He further stated in the application that he has not made any prayer to change the direction of the land nor appointed Shri Shailendra Singh, Advocate for giving applications for that purpose. He prayed for rejecting his application dated 28.4.1986 for change of direction of surplus land in his plot, and for leaving 2000 sq. mtrs. of land towards south. The applications dated 23.12.1986 and 25.3.1987 were rejected on 29.7.1988 on the ground that the proceedings under Section 10 (5) were already concluded. 5. The appeal No. 240/4539 was allowed by the Addl. District Judge (Tribunal) under the Land Ceiling Act, Moradabad on 10.1.1990 and the matter was remanded with directions to give an opportunity of hearing to the appellant, on the ground that the appeal was not heard before the applications were rejected. On remand Late Shri Jumma, the objector filed objections, that he had erroneously disclosed in his statement that he is owner of one half of Gata No. 750 area 13.22 acres. He had infact executed an oral gift on 17.5.1972 of 1/2 of Gata No. 750 area 26750.69 sq. mtrs. in favour of Smt. Mithilesh Tyagi wife of Shri Kishore Dev Tyagi, and Shri Manoj Tyagi, Awadhesh Tyagi and Km. Geeta Tyagi, sons and daughter of Shri Kishore Dev Tyagi, and had handed over possession to them. Smt. Mithilesh Tyagi is the owner and in possession of this portion. The applicant has no concerned with 2 acres of land of his portion, after 17.5.1972, after which, the objector is in possession of only 18756.69 sq. mtr., whereas proceedings were taken treating the land to be 26780.77 sq. mtrs. The objector further stated, that he came to know of proceedings, when he received the notice on 21.9.1992 and gave information to Smt. Mithilesh Tyagi. She got the file inspected, and found that her land was also declared as surplus in the hands of Late Shri Jumma treating it to be owned by him. She has also made a boundary wall enclosing the construction on the land. 6. In the alternative in the appeal, the objector prayed for redetermination of the surplus land under the Ceiling Act. She has also made a boundary wall enclosing the construction on the land. 6. In the alternative in the appeal, the objector prayed for redetermination of the surplus land under the Ceiling Act. After taking into consideration Section 2 (q), under which the land on which the constructions are prohibited cannot be treated as vacant land. According to Section 2 (q) the constructed areas prior to the appointed date could not be treated as vacant land, and consequently the order dated 13.2.1978 is liable to be cancelled. 7. The competent authority by his order dated 23.10.1992 after hearing the objector, rejected the objections on the ground that the matter was fixed on 23.10.1992, after notice to the counsel for the objector. No one appeared for him and thus the matter proceeded ex-parte and on which the objections dated 30.9.1992 were rejected. Since the proceedings under Section 10 (5) for possession were concluded, the proceedings for allotment were directed to be initiated under Section 23 of the Act. 8. The objector Shri Jumma alongwith Smt. Mithilish Tyagi; Manoj Tyagi, Awadhesh Tyagi and Km. Geeta Tyagi filed Urban Land Ceiling Appeal No. 44 of 1992 against the order of the Prescribed Authority. They alleged that on 23.10.1992 when the Prescribed Authority decided the matter ex-parte after remand, the applicant was present and had filed an application. The Prescribed Authority did not hear any argument. In appeal the matter was remanded to give opportunity to the objector, but once again the order was passed without hearing him. 9. The 12th Addl. District Judge, Moradabad by his order dated 18.1.1995 allowed the appeal and set aside the order dated 23.10.1992 on the ground that Late Shri Jumma had filed an application on 23.10.1992, and thus he could not be treated to be absent. The Prescribed Authority should have decided the objections on merits. The appellate authority, however, found that since only Late Shri Jumma was entitled to file appeal, in as much as the proceedings were initiated against him, Smt. Mithilesh Tyagi-appellant No. 2 and other appellants were not entitled to be heard. 10. The State of U.P. filed Writ Petition No. 3475 of 1996 against the order of the District Judge dated 18.1.1995. The writ petition was dismissed on 25.5.2000 by an order quoted as follows : “By efflux of time, this petition appears to have become infructuous. 10. The State of U.P. filed Writ Petition No. 3475 of 1996 against the order of the District Judge dated 18.1.1995. The writ petition was dismissed on 25.5.2000 by an order quoted as follows : “By efflux of time, this petition appears to have become infructuous. It is accordingly dismissed as infructuous. Interim order, if any, stands discharged. However, there will be no order as to cost.” 11. Shri Iqbal son of Shahjade filed Writ Petition No. 34791 of 2001 claiming that he is in actual physical possession of the land seeking benefit of Section 3 (1) (a) of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. The Court held that it cannot record any finding on the fact of possession in the proceedings, and directed the Collector to make an enquiry. If the petitioner is in actual physical possession, he shall not be dispossessed from the land and that the land shall not be treated as vacant land. The Court also directed in its order dated 30.3.2009, that the parties shall maintain status quo till the decision of the Collector. 12. The Collector directed the Tehsildar, Moradabad to inspect the spot. In the report dated 29.9.2009, the Tehsildar submitted to the Collector that 24978.00 sq. mtrs. land in Gata No. 750 was declared as surplus in Case No. 240/4539, State v. Shri Jumma. Out of which some land is lying vacant. On some part of land there is abadi (residential constructions) and on some the plinth has been laid by some persons, in the year 2006. The possession of the land was taken over in favour of the State Government on 20.1.1987, after its direction was changed in pursuance of the order of the competent authority dated 28.4.1986 under Section 45 of the Act, and after it was declared surplus. The possession was taken on 26.3.1980. On this report the Collector, Moradabad by his order dated 26.10.2009, rejected the representations dated 11.5.2009 of Shri Sharafat and dated 5.5.2009 of Shri Babu, the petitioners in the writ petition. 13. The possession was taken on 26.3.1980. On this report the Collector, Moradabad by his order dated 26.10.2009, rejected the representations dated 11.5.2009 of Shri Sharafat and dated 5.5.2009 of Shri Babu, the petitioners in the writ petition. 13. Shri B.D. Mandhyan, learned counsel for the petitioner submits that the District Judge had allowed the appeal filed by Jumma on 10.1.1990 directing the Prescribed Authority to give an opportunity of hearing to the petitioner and thereafter again Appeal No. 44 of 1992 against the ex-parte order of the competent authority dated 23.10.1992 was allowed by the District Judge on 18.1.1995 remanding the matter for giving opportunity of hearing to Shri Jumma and to pass orders on merit. The writ petition No. 3475 of 1996, filed by the State of U.P. was dismissed on 25.5.2000, and thus the orders of the appellate authority have become final and have not been carried out. The competent authority was required to decide the matter afresh on its merits. Shri B.D. Mandhyan submits that no decision has been taken on merits so far and that the petitioners are still in possession over the land, which was declared as surplus land. In the meantime with the repeal of the Act, the proceedings have abated. The respondents are threatening to take over possession giving rise to the writ petition. He submits that this writ petition was filed on 17.11.2009, and in which on 23.11.2009 the supplementary affidavit was required to be filed. In the supplementary affidavit the petitioners have stated that Smt. Mithilesh Tyagi had also filed objections in Case No. 240/2539 claiming half share of Jumma on the basis of oral Hibbanama (gift), on the basis of which her original suit No. 534 of 1992 was decreed by the Civil Court on 17.8.1994. The remand order of the District Judge dated 18.1.1995 has not been carried out so far. He submits that the petitioners are entitled to the benefit of Section 3 (1) (a) of the Urban Land (Ceiling and Regulation) Act, 1976. 14. Learned Standing Counsel appearing for the State of U.P. and Shri P.K. Singh appearing for the Moradabad Development Authority have objected to the prayers made in the writ petition. It is submitted by them that the proceedings under the Act concluded by an order dated 13.2.1978 declaring 24978 sq. mtr. 14. Learned Standing Counsel appearing for the State of U.P. and Shri P.K. Singh appearing for the Moradabad Development Authority have objected to the prayers made in the writ petition. It is submitted by them that the proceedings under the Act concluded by an order dated 13.2.1978 declaring 24978 sq. mtr. of land in Gata No. 750 in the hands of Shri Jumma, which was recorded tenure holder. The notifications under Sections 10 (1) and 10 (3) were published on 26.12.1978 and 22.9.1989 and notice under Section 10 (5) was issued on 29.1.1980. The possession of surplus land was taken on 26.3.1980. Shri Jumma applied for declaring the south western portion instead of eastern portion of the plot as surplus land. The correction was carried out and the possession of south western land was taken by the Tehsildar, Moradabad on 20.1.1987. Shri Jumma did not file any application against the declaration of surplus land. In his application dated 23.12.1986 and 25.3.1987 he had prayed that he was owner of one half of the land; the remaining land belong to Mangu and thus his entire land of 2000 sq. mtr. should have been released. His application was not by way of objections to the draft statement. The appellate order dated 10.1.1990 was in respect of his applications dated 23.12.1986 and 25.3.1987. The appellate order dated 18.1.1995 was also in respect of the objections dated 23.12.1986. The appellate Court had found that Smt. Mithilesh Tyagi and others did not have any right to join Shri Jumma, to file the appeal. Shri Jumma, thereafter, did not pursue the proceedings and in the subsequent writ petition Shri Sharafat son of Shahjade and Shri Babu son of Mangu had only stated that they were in actual physical possession and claimed benefits of the Repeal Act. The District Magistrate caused an enquiry and found that they are not in possession. The entire proceedings for possession were taken in accordance with law. At present some strangers are in possession over the land in dispute. These strangers are not entitled to hold the land and have not come forward to defend their illegal possession. 15. We have examined the pleadings, the documents annexed to the writ petition and the submissions made by the parties. At present some strangers are in possession over the land in dispute. These strangers are not entitled to hold the land and have not come forward to defend their illegal possession. 15. We have examined the pleadings, the documents annexed to the writ petition and the submissions made by the parties. From the orders passed by the competent authority we find that draft statement was issued on 27.6.1977 to which Shri Jumma had filed objections on 29.7.1977. The Competent Authority declared 24978 sq. mtr. of land in Gata No. 750 as surplus land by his order dated 13.2.1978. The notification under Sections 10 (1) and 10 (3) were published on 26.12.1978 and 22.9.1989, respectively on which notice under Section 10 (5) was issued and possession was taken by the Tehsildar on 26.3.1980. An application was made after 6 years on 28.4.1986 to change the direction of the land and to take the south-western portion as surplus in the plot instead of eastern portion. This application has been annexed with the supplementary counter-affidavit of Shri Surendra Prakash Gupta, Asstt. Engineer, Land Ceiling, Moradabad. In this hand written application filed by Shri Jumma with his thumb impression through his Advocate Shri Shailendra Singh, he had stated that land of two brothers in Gata No. 750, in Khata Khatauni 137 were brought under Ceiling Proceedings. Both the brothers were given 2000 sq. mtrs. each. The surplus land has been left towards south. They were not aware of the direction of the land declared as surplus. They have sold the land towards north and that they will suffer losses in case the land is not left towards north. In this application they only prayed for changing the directions of the land. By order dated 23.4.1986 the application was directed to be placed on record, and in pursuance to which the direction of the land was changed in proceedings under Section 45 of the Act, and possession was taken in favour of the State on 20.1.1987. 16. This order and the consequent change of direction of the surplus land clearly bears out on the record that the possession of surplus land was taken on 26.3.1980. Later the direction of surplus land in the plot was changed and the possession was again taken in the proceedings and was given voluntarily on 20.1.1987. Thereafter nothing remained to be decided, or to be reconsidered. 17. Later the direction of surplus land in the plot was changed and the possession was again taken in the proceedings and was given voluntarily on 20.1.1987. Thereafter nothing remained to be decided, or to be reconsidered. 17. It appears that Shri Jumma made another application on 23.12.1986 alleging that he has not given any application for change of direction. Someone else had made the application on his behalf. He does not want to change the direction and that his 2000 sq. mtr. of land towards south may be left and the area should be corrected. These applications, which did not request for reopening the case and were only in respect of changing the direction were rejected by the competent authority on 29.7.1988. It is pertinent to note that in the application dated 23.12.1986, Shri Jumma did not make any request to set aside the order dated 13.2.1978 under Section 8 (4) of the Act by which the land was declared as surplus land. These applications had no significance nor had any bearing on the merits of the case and appears to have been made only in respect of change of directions to save the land, which was transferred by Late Shri Jumma. The change of direction to save the land was actually carried out on 20.7.1987, and to which no objections were filed nor any further application was made, challenging the orders in the proceedings for change of directions. 18. The appeal was directed against the order dated 29.7.1988 rejecting the applications as above, in the matter of change of directions. The remand orders passed by the District Judge on 10.1.1990 and 18.1.1995, were not in respect of the declaration of surplus land. There was no prayer to set aside the order dated 13.2.1978 declaring the surplus land. These were only in respect of orders of changing directions of surplus land in the plot. 19. The story set up by the petitioners, of execution of the oral gift in favour of Smt. Mithilesh Tyagi and others, is an afterthought. No such plea was taken in the ceiling proceedings. In the appellate order dated 18.1.1995 the 12th Addl. District Judge has clearly found that no objection was filed by Smt. Mithilesh Tyagi, and thus appeal was not maintainable on her behalf. 20. No such plea was taken in the ceiling proceedings. In the appellate order dated 18.1.1995 the 12th Addl. District Judge has clearly found that no objection was filed by Smt. Mithilesh Tyagi, and thus appeal was not maintainable on her behalf. 20. The decree of Suit No. 534 of 1992 is not binding upon State of U.P. or the Moradabad Developemnt Authority as neither the State of U.P. nor the Moradabad Development Authority were parties to the suit. The suit was filed by Smt. Mithilesh Tyagi and others, against Jumma, who did not deny and admitted the plaint allegation and did not contest the suit. The suit was apparently collusive between the plaintiffs and Shri Jumma filed to save the land. The decree is not binding upon the State of U.P. 21. The District Magistrate has carried out spot inspection and has recorded findings of fact that the petitioners are not in possession of the land in dispute. 22. In affidavit of Shri Munna Lal, Asstt. Engineer in the office of the Moradabad Development Authority, Moradabad, it is stated that the State Government transferred the possession of the land in favour of the Moradabad Development Authority on 3.11.1992, and that the surplus land is now recorded in the name of Moradabad Development Authority. In the year 2007, the Moradabad Development Authority attempted to remove the encroachment from over the surplus ceiling land transferred to it by the State Government. The anti encroachment drive was launched by the Moradabad Development Authority, in June, 2007. At this stage by a representation dated 13.7.2007, filed after fifteen years, the petitioners applied to the Urban Land Ceiling Authority to grant benefit of the Repeal Act, 1999 and thereafter filed the writ petition, which was disposed of with directions to decide as to who is in possession. The Collector has rightly passed the order on 30.10.2009 rejecting the representation after spot inspection, with the findings that the petitioners are not in possession of the surplus land after change of direction of surplus land in the plot on 20.1.1987. 23. The reliance place by Shri B.D. Mandhyan on Pt. The Collector has rightly passed the order on 30.10.2009 rejecting the representation after spot inspection, with the findings that the petitioners are not in possession of the surplus land after change of direction of surplus land in the plot on 20.1.1987. 23. The reliance place by Shri B.D. Mandhyan on Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and others, 2000 (2) AWC 1489 (SC); Chabi Nath v. State of U.P. and others, 2005 (2) AWC 1405 ; M/s Star Paper Mills Ltd. v. State of U.P. and others, 2010 (9) ADJ 708 (DB); Gopal Singh and another v. State of U.P. and others, 2010 (2) ADJ 588 (DB); Ram Chandra Pandey v. State of U.P. and others, 2010 (7) ADJ 488 (DB) and Lalji v. State of U.P. and others, 2010 (4) ADJ 140 (DB), is not of any help to the petitioners, as in these cases the Court had found that where actual physical possession was not taken after adopting proceedings under Sections 10 (5) and 10 (6) of the Act, the benefit of Section 3 (1) (a) of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 could be given to the persons, who were found to be in possession of surplus land. 24. In the present case the actual physical possession of the land was taken after completing formalities under Section 10 (5) and (6) on 29.1.1980 and 26.3.1980 respectively. Late Shri Jumma is original tenure holder had applied for change of direction of surplus land in the plot on 28.4.1986, on which an order was passed and the Tehsildar, Moradabad had changed the direction. He had changed the direction of surplus land in the plot, and taken over possession of the south western portion from Late Shri Jumma voluntarily on 20.1.1987. The District Magistrate made enquiries and has found that the petitioners are not in actual physical possession since then. The petitioners have not filed any material to disprove the findings of the Collector, Moradabad, based on inspection of records and the spot inspection report of the Tehsildar, Moradabad dated 29.9.2009. The writ petition is dismissed. ——————