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Andhra High Court · body

2014 DIGILAW 1537 (AP)

P. Laxmi Kantha Rao v. Government of A. P.

2014-12-18

S.V.BHATT

body2014
ORDER S.V. Bhatt, J. 1. Heard learned counsel for the petitioners and the Government Pleader. With the consent of learned counsel appearing for the parties, the writ petition is taken up for final disposal. 2. The issue arises under the Urban Land (Ceiling And Regulation) Act, 1976 (for short 'the Act') and the Urban Land (Ceiling And Regulation) Repeal Act, 1999 (for short "the Repeal Act). 3. The petitioners pray for Certiorari to call for the records leading up to and inclusive of the order dated 08.03.2006 in Proceedings No. Fl/5422 to 5425/76 and all consequential notifications and Proceedings No. F2/5422 to 5424/76 dated 02.02.2008 of 2nd respondent and quash the same, as illegal, violative of principles of natural justice, arbitrary and unconstitutional. 4. The relevant circumstances for disposal of the writ petition are that the petitioners filed statement in Form-1 under Section 6(1) of the Act. On 23.02.1987 provisional order under Section 8(1) of the Act was passed determining surplus vacant land held by the petitioners as 69,606.88 square metres. The petitioners filed objections to the provisional determination, and on 30.08.1988 final order under Section 8(4) of the Act was passed declaring the declarants as surplus land holders of a total extent of 33,360.75 square metres. The order under Section 8(4) of the Act was assailed in Appeal Nos. U.C. 1/2425 to 2428/88. The appellate authority through order dated 29.06.1996 remanded the case to 2nd respondent for fresh consideration and orders under Section 8 (4) of the Act. 5. After remand, the 2nd respondent passed order under Section 8(4) of the Act determining surplus holding by petitioners as 31,689.55 square metres. It is relevant to notice that the appellate authority through order dated 29.06.1996 directed the 2nd respondent to consider the applicability of Act to a few survey numbers in view of the notified purpose of survey numbers under the Andhra Pradesh Urban Areas (Development) Act, 1975. It is the definite case of petitioners that the land use certificate dated 23.06.1987 issued by HUDA has bearing on the determination of surplus land in the possession of petitioners and according to the said land use certificate, Survey Nos. 592 to 594, 692 to 695 are earmarked for conservation zone and Survey No. 626 is partly shown in conservation zone and partly in residential zone. Survey Nos. 593, 695 to 696 are affected by 60' road. 592 to 594, 692 to 695 are earmarked for conservation zone and Survey No. 626 is partly shown in conservation zone and partly in residential zone. Survey Nos. 593, 695 to 696 are affected by 60' road. These lands cannot be treated as vacant lands under Section 2 (q) of the Act. Therefore, it is contended that the determination through order dated 08.03.2006 is illegal and contrary to the order passed by the appellate authority on 29.06.1996. The legal objections against the impugned proceedings are: (i) the determination under Section 8(4) of the Act is illegal and contrary to the material available on record, (ii) the 2nd respondent has not followed the mandatory procedure at various stages under Section 10(1) and 10(3) of the Act. The definite case of petitioners is that the notice under Section 10(5) of the Act was not issued to the petitioners at all. Therefore, the consequential proceedings dated 02.02.2008 is illegal, void ab initio and not binding on the petitioners. The petitioners claim to be in physical possession of the survey numbers covered by the declaration. The alleged Panchanama was conducted by the respondents without following the procedure stipulated for taking forceful possession from the petitioners and such acts do not disturb the possession and enjoyment of petitioners of petition land. The Panchanama contains several contradictions on alleged taking over possession from petitioners of petition lands. The petitioners referred to a few interpolations in the Panchanama alleged to have been conducted by the 2nd respondent to claim possession of the petition land. The proceedings under Section 10(6) therefore is not binding on the petitioners and the taking of symbolic possession is impermissible as per the tenor of Section 10(5) and (6) of the Act. The petitioners pray for setting aside the impugned proceedings. 6. This Court through order dated 07.08.2008 directed maintenance of status quo as on date until further orders. 7. The 2nd respondent filed counter and also a petition to vacate interim order dated 07.08.2008. 8. The 2nd respondent concerns with the narration of the case by petitioners till the order dated 08.03.2006. The 2nd respondent replies that the proceedings dated 08.03.2006 were sent to the petitioners and also to other officials for taking necessary action. 7. The 2nd respondent filed counter and also a petition to vacate interim order dated 07.08.2008. 8. The 2nd respondent concerns with the narration of the case by petitioners till the order dated 08.03.2006. The 2nd respondent replies that the proceedings dated 08.03.2006 were sent to the petitioners and also to other officials for taking necessary action. The reply on the alleged violations in following the procedure under Section 10 of the Act stated in the words of 2nd respondent is as follows: "After completion of required formalities under Section 10(1) notification was published in A.P. Gazette No. 392 dated 04.12.2006 and 10(3) was published in A.P. Gazette No. 177 dated 18.06.2007 and notice U/s. 10(5) of the Act was issued on 01.09.2007. But the declarant failed to surrender the surplus land. Hence, orders U/s. 10(6) of the Act were issued on 02.02.2008 and possession of the surplus land taken over by the Enquiry Officer on 13.03.2008. As such, the proceedings issued has become final and saved under the Principal Act, 1976." 9. As regards non-consideration of certificate issued by the Hyderabad Urban Development Authority, it is generally denied and further stated that the instant objection is taken for the first time in the writ petition. The 2nd respondent by reference to the steps taken on 04.12.2006, 18.06.2007, 02.02.2008 and 13.03.2008 claims that the surplus land stood vested in the Government and on 13.03.2008, the possession was taken by 2nd respondent. It is further averred that by operation of Section 3(2) of the Repeal Act, the same is saved. 10. This Court directed the 2nd respondent to produce the original record and given liberty to file additional counter affidavit specifically adverting to the procedure followed from the stage under Section 10(5) of the Act till the alleged possession was taken through Panchanama dated 13.03.2008. 11. The original record has been made available for the inspection of the Court. The 2nd respondent filed additional counter affidavit. The 2nd respondent preferred to excerpt the following file notings from case No. F1/5422 to 5425/1976: "It is respectfully submitted that this Additional Counter Affidavit is filed to substantiate the non-availability of the office copy/served copy of notice U/s. 10(5), dated 01.09.2007 in the file dealt the ceiling case by this respondent. The 2nd respondent filed additional counter affidavit. The 2nd respondent preferred to excerpt the following file notings from case No. F1/5422 to 5425/1976: "It is respectfully submitted that this Additional Counter Affidavit is filed to substantiate the non-availability of the office copy/served copy of notice U/s. 10(5), dated 01.09.2007 in the file dealt the ceiling case by this respondent. It is to submit that factually after publication of declaration U/s.10(3)of the Act, being sequential process of the case notice U/s. 10(5) of the Act in four sets addressed to the declarants individually were approved on 01.09.2007 under a copy to the enquiry officer with a direction to serve the said notice on the addressees and to return the served copy for further processing of the case. The remarks at Note File Para No. 180 at Page No. 46 of the Current Note File in CC No. F/5422 to 5425/76 are reproduced hereunder for appreciation. "CNEP'180' Ref: Gazette No. 177, dt. 18.06.2007 ### Kindly peruse the Gazette cited, wherein declaration U/s. 10(3) of the Act was issued and got published and found correct. If agreed notice U/s. 10(5) of the Act may be issued. Draft notices O/c. (office copy) + F/c (fair-copy) is put-up subject to approval please. Sd/- Sd/- Sd/-16/08 Four notices U/s.10(5) 8.8.07 8.8.07 ST/OSD putup may be approved Sd/- 16.08.07 JO Sd/-16/8 Sd/-1/9 ASO SO & CA NF Page 48 "CNFP'181' Submitted: In this file 10(5) notice issued on 1-9-07. If agreed 10(6) proc., may be issued. Accordingly, draft 10(6) proc. 0/c.(office copy) & F/cs (fair copy) prepared and placed below for approval. Sd/- Supdt Sd/-2/2 2/2 Sd/2.2.08 SO & CA” "It is submitted that as stated in the foregoing Paras, the notices U/s.10(5) were factually approved on 01.09.2007 and the same were handed over to the concerned Enquiry Officer on 29.09.2007 for compliance. May be for the reasons beyond knowledge to the file such as office business or any other assignments of the day, the served copy/office copy is missed to tag at the appropriate place in the file. As per the remarks at CNF Para (181) at CNF Page 48 of the file orders U/s. 10(6) were passed evidently. The comments in the note file are essential, admissible for delivery of any notice or proceedings in the file. As per the remarks at CNF Para (181) at CNF Page 48 of the file orders U/s. 10(6) were passed evidently. The comments in the note file are essential, admissible for delivery of any notice or proceedings in the file. Action is being taken against the concerned separately for non-placing the served copy of notice dated 01.09.2007 U/s. 10(5) of the Act in the concerned file. As such simply/merely non-availability of a copy of the notice U/s. 10(5) physically in the file does not entails vitiation of the effect of notice U/s. 10(5) ignoring subsequent proceedings. As such the writ petitioner shall not be allowed to take shelter of the above facts for his benefit. Hence the contention of the writ petitioner is denied." Emphasis added 12. Learned counsel for the petitioners contends that the orders passed under Section 8(4) of. the Act suffer from patent illegalities and are contrary to the principle laid down by this Court in The Government of A.P. rep. by its Secretary, Health, Housing and Municipal Administration Department, Hyderabad and others v. J. Raghothama Reddy 1991(2) An.W.R. 599. and also State of A.P. and another v. B. Komaraiah and another 2002 (1) ALT 787 (DB). By referring to the original record, the learned counsel contends that there is nothing on record to show that the orders under Section 8(4) of the Act have at least been communicated to the petitioners in the manner known to law. Had the 2nd respondent considered the conclusions recorded by the appellate authority in the order dated 29.06.1996, the 2nd respondent would have certainly considered the objection taken under Section 2(q) of the Act. Therefore, he contends that the very determination of 31,689.55 square metres is illegal and contrary to the settled position of law. Alternatively, the learned counsel contends that the respondents claim to have initiated further steps under Section 10(1) of the Act through A.P. Gazette No. 392 dated 04.12.2006 and 10(3) publication in A.P. Gazette No. 177 dated 18.06.2007. The petitioners categorically state that the petitioners have not received notice under Section 10(5) of the Act. The 2nd respondent can claim possession under Section 10(5) or 10(6) of the Act and the burden is on 2nd respondent to discharge the burden to claim that the property stood vested in Government. The petitioners have not voluntarily surrendered possession of surplus land to 2nd respondent. The 2nd respondent can claim possession under Section 10(5) or 10(6) of the Act and the burden is on 2nd respondent to discharge the burden to claim that the property stood vested in Government. The petitioners have not voluntarily surrendered possession of surplus land to 2nd respondent. The 2nd respondent claims to have taken forceful possession after following the procedure stipulated under Section 10(5) and 10(6) of the Act. Legal objection stated that the notice under Section 10(5) of the Act is mandatory and any step alleged to have been taken under Section 10(6)without service of notice under Section 10(5) is per se illegal and contrary to the view taken by the Apex Court in State of Uttar Pradesh v. Hariram 2013 ALT (Rev.) 167 (SC) : 2013 (3) SCJ 125 : (2013) 4 SCC 280 and Gajanan Kamlya Patil v. Additional Collector & Competent Authority 2014 ALT (Rev.) 161 (SC) : 2014 (6) SCJ 90 : AIR 2014 SC 1843. The learned counsel places strong reliance upon the principle laid down in Hariram's case 2013 ALT (Rev.) 167 (SC) : 2013 (3) SCJ 125 : (2013) 4 SCC 280 (supra) to contend that the onus is on the 2nd respondent to prove that by following the procedure stipulated under Section 10(5) and 10(6) not only the lands stood vested but the actual and physical possession of surplus land is taken by the respondents. If the respondents fail to discharge the onus, according to the statement, the petitioners are entitled to the benefit of Section 3(2) of the Repeal Act. 13. The learned Government Pleader submits that the file no doubt refers to issuance of notice under Section 10(5) of the Act and the failure to show proof of service of notice should not be readily inferred and the totality of circumstances ought to be examined. Even if there is hardly any material in the file to show that in fact, a notice under Section 10(5) of the Act was issued to the petitioners or served on petitioners, from the other notings in the file, the learned Government Pleader tries to contend that the objection now taken is an after thought and the possession is stated to have been taken over through Panchanama dated 13.03.2008. Therefore he contends that the Government is entitled to rely on savings clause under Repeal Act. Therefore he contends that the Government is entitled to rely on savings clause under Repeal Act. Finally he contends that the petitioners are not entitled for any relief and prays for dismissal of writ petition. 14. The points that arise for consideration are: "1. Whether the petitioners are entitled to the benefit of exclusion of land which is not vacant land within the meaning of Section 2 (q) of the Act? 2. Whether the orders under Section 8(4) of the Act have been served on the petitioners? 3. Whether the possession claimed by the respondents to take protection under the saving clause in Section 3(2) of the Repeal Act is in accordance with Section 10(5) and (6) of the Act?" 15. The dates and circumstances are not in dispute. For convenience, I propose to consider answering Point No. 3 as the finding on this point obviates consideration of other points. Point No. 3: 16. Section 10(3), (5) and (6) of the Act reads as follows: "Section 10(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." "Section 10(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 authorized by the State Government in this behalf within thirty days of the service of the notice". "Section 10(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 authorized by such State Government in this behalf and may for that purpose use such force as may be necessary." 17. Section 3(2) of the Repeal Act reads as follows: "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 authorized 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." 18. The Apex Court in Hariram's case 2013 ALT (Rev.) 167 (SC) : 2013 (3) SCJ 125 : (2013) 4 SCC 280 (supra) has considered the procedure to be followed from the stage after issuance of notification under Section 10(3) of the Act. The paragraphs in the reported case which have bearing on the issue are as follows" "Voluntary surrender The "vesting" in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The Court in Maharaj Singh v. State of U.P., while interpreting Section 117(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 held that "vesting" is a word of slippery import and has many meanings and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The Court in Rajendra Kumar v. Malayan held as follows: "28. We do find some contentious substance in the contextual facts, since vesting shall have to be a 'vesting' certain. 'To "vest", generally means to give a property in; (Per Brett. L.J. Coverdale v. Charlton: Stroud's Judicial Dictionary, 5th Edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed, to be a contingent event. To 'vest' cannot be termed to be an executory devise. L.J. Coverdale v. Charlton: Stroud's Judicial Dictionary, 5th Edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed, to be a contingent event. To 'vest' cannot be termed to be an executory devise. Be it noted however, that 'vested' does not necessarily and always mean 'vest in possession' but includes 'vest in interest as well." We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including dejure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act. Before we examine sub-section (5) and sub-section(6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under sub-section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land. Peaceful dispossession Sub-section (5) of Section 10, for the first time, speaks of "possession" which says that where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorized by the State Government. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) of Section 10, there is no necessity of using the expression "where any land is vested" under sub-section (5) of Section 10. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) of Section 10, there is no necessity of using the expression "where any land is vested" under sub-section (5) of Section 10. Surrendering or transfer of possession under sub-section (3) of Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) of Section 10 to surrender or deliver possession. Sub-section (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while sub-section (6) of Section 10 contemplates a situation of forceful dispossession. Forceful dispossession: The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10. Sub-section (6) of Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under sub-section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force-as may be necessary- can be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub-section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted to only in a situation which falls under sub-section (6) and not under sub-section (5) of Section 10. Sub-sections (5) and (6), therefore, take care of both the situations i.e. taking possession by giving notice, that is, "peaceful dispossession" and on failure to surrender or give delivery of possession under Section 10(5), then "forceful dispossession" under sub-section (6) of Section 10. The requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word "may" has been used therein, the word "may" in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Though the word "may" has been used therein, the word "may" in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of Section 11 is that it might result in the landholder being dispossessed without notice, therefore, the word "may" has to be read as "shall". The above reasoning is in consistence with the 1983 Directions which have been issued by the State Government in exercise of the powers conferred under Section 35 of the Act. The Directions clearly indicate the procedure for taking possession of the vacant land in excess of the prescribed ceiling limited which reads as under: The Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983 (Directions issued by the State Government under Section 35 of the 1976 Act): "In excise of the powers under Section 35 of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), the Governor is pleased to issue the following directions relating to the powers and duties of the competent authority in respect 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 subjected 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. Definitions:- * * * 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 notification under sub-section (3) of Section 10of the Act is published in the gazette. 2. Definitions:- * * * 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 notification under sub-section (3) of Section 10of 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 109 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No. ULC-I. (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 No. ULC-III and also in Column 9 of Form No. ULC-1. The competent authority shall in token of verification of the entries, put his signatures in Column 11 of Form No. ULC-1 and Column 10 of Form No. ULC-III. xxxx Effect of the Repeal Act. Let us now examine the effect of Section 3 of Repeal Act 15 of 1999 on sub-section (3) of Section 10of the Act. The Repeal Act, 1999 has expressly repealed Act 33 of 1976. The objects and reasons of the Repeal Act have already been referred to in the earlier part of this judgment. The Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18-3-1999. The State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the landowner or holder can claim the benefit of Section 4 of the Repeal Act. The State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the landowner or holder can claim the benefit of Section 4 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 4 of the Repeal Act. We, therefore, find no infirmity in the judgment of the High Court and the appeal is, accordingly, dismissed so also the other appeals. No documents have been produced by the State to show that the respondents had been dispossessed before coming into force of the Repeal Act and hence, the respondents are entitled to get the benefit of Section 4 of the Repeal Act. However, there will be no order as to costs." 19. The decision in Gajanan Kamlya Patil v. Additional Collector & Competent Authority 2014 ALT (Rev.) 161 (SC) : 2014 (6) SCJ 90 : AIR 2014 SC 1843 (supra) is relied upon to contend that the possession claimed to have been taken does not satisfy the principle laid down by the Apex Court and having regard to abatement of proceedings the notice under Section 10(5) and Section 10(6) should be declared illegal. The relevant portion in the said decision reads as follows: "We have, therefore, clearly indicated that it was always open to the authorities to take forcible possession and, in fact, in the notice issued under Section 10(5) of the ULC Act, it was stated that if the possession had not been surrendered, possession would be taken by application of necessary force. For taking forcible possession, certain procedures had to be followed. Respondents have no case that such procedures were followed and forcible possession was taken. Further, there is nothing to show that the Respondents had taken peaceful possession, nor there is anything to show that the Appellants had given voluntary possession. Facts would clearly indicate that only de jure possession had been taken by the Respondents and not de facto possession before coming into force of the repeal of the Act. Further, there is nothing to show that the Respondents had taken peaceful possession, nor there is anything to show that the Appellants had given voluntary possession. Facts would clearly indicate that only de jure possession had been taken by the Respondents and not de facto possession before coming into force of the repeal of the Act. Since there is nothing to show that de facto possession had been taken from the Appellants prior to the execution of the possession receipt in favour of MRDA, it cannot hold on to the lands in question, which are legally owned and possessed by the Appellants. Consequently, we are inclined to allow this appeal and quash the notice dated 17.2.2005 and subsequent action taken therein in view of the repeal of the ULC Act. The above reasoning would apply in respect of other appeals as well and all proceedings initiated against the Appellants, therefore, would stand quashed." 20. From the original file the following circumstances emerge for consideration. The 2nd respondent directed service of notice of hearing by other means. The case was taken up for hearing on 28.11.2005. There is no reference to service of notice at that stage. On 08.03.2006 orders under Section 8(4) are stated to have been passed. From these endorsements, it is not clear whether the petitioners had knowledge of the hearing on 28.11.2005 or not. Be that as it may, the crucial aspect of the matter is whether the 2nd respondent has served notice on the petitioners under Section 10(5) of the Act or not. Section 10 of the Act mandates the 2nd respondent to serve 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 authorized by the State Government in this behalf within 30 days of the service of the notice. The obligation on the persons to whom notice was served to deliver vacant possession of land arises with the receipt of notice under Section 10(5) of the Act. In the case on hand, on 08.08.2007 approval of 2"d respondent is taken to serve notices under Section 10(5) of the Act. The same was permitted on 02.02.2008 and endorsement is as follows: "In this file, 10(5) notice issued on 1.9.07. If agreed 10(6) proceedings may be issued. In the case on hand, on 08.08.2007 approval of 2"d respondent is taken to serve notices under Section 10(5) of the Act. The same was permitted on 02.02.2008 and endorsement is as follows: "In this file, 10(5) notice issued on 1.9.07. If agreed 10(6) proceedings may be issued. Accordingly draft 10(6) proceedings O/C & FCS prepared and placed below for approval." 21. On 02.02.2008, the 2nd respondent approved the noting and reference to notice issued under Section 10(5) on 01.09.2007 is made. The onus, as noted above, is on the 2"d respondent to satisfy that notice was issued to the petitioners to take up next stage under Section 10(6) of the Act. As observed by the Apex Court, the service of notice on the persons in possession of surplus land under Section 10(5) of the Act is mandatory for two reasons, firstly to enable the person in possession of the land to voluntarily surrender the surplus land either to the State Government or to person authorized by the state Government. With the expiry of the period stipulated under the Act, the respondents can take possession forcefully as is required depending on the facts and circumstances of the case. The 2nd respondent without satisfactorily discharging the onus viz., that the notices under Section 10(5) of the Act are issued to the petitioners cannot by reference to the endorsement dated 13.03.2008 claim to have taken possession of the surplus land from the petitioners. The possession as is evident from the counter affidavit and additional counter affidavit does not say whether it is voluntarily or forcible. 22. The ratio of the decisions in Hariram 2013 ALT (Rev.) 167 (SC) : 2013 (3) SCJ 125 : (2013) 4 SCC 280 (supra) and Gajanan Kamlya Patil 2014 ALT (Rev.) 161 (SC) : 2014 (6) SCJ 90 : AIR 2014 SC 1843 (supra) applies with full fours to the case on hand. The definite case of respondents is that after notice under Section 10 (5), possession under Section 10(6) was taken over on 13.03.2008. As already noticed, the burden is on the 2nd respondent to prove that the procedure is followed and possession taken over on 13.03.2008. The service of notice under Section 10(5) cannot be inferred from note file, but should be proved by primary evidence. The additional counter affidavit and original record belie this assertion. As already noticed, the burden is on the 2nd respondent to prove that the procedure is followed and possession taken over on 13.03.2008. The service of notice under Section 10(5) cannot be inferred from note file, but should be proved by primary evidence. The additional counter affidavit and original record belie this assertion. At the time of taking up steps under Section 10(6), the note file does not refer to service of notice under Section 10(5), but it refers to issue of notice under Section 10(5) on 01.09.2007. From the record it is evident that there is breach in following mandatory procedure and the respondents cannot claim possession of subject land for any purpose. 23. Either way, on the ground that the 2nd respondent failed to discharge the onus of service of notice under Section 10(5) of the Act on the petitioners, the impugned proceedings are liable to be set aside and accordingly they are set aside. As the 2nd respondent failed to discharge the onus, the benefit of possession that was and is with the petitioners is protected by Section 3 (2) of the Repeal Act. As there is patent illegality in following the procedure under Section 10 of the Act, this Court sets aside the order dated 08.03.2006. The other points formulated are not considered in view of the findings and effect of Repeal Act from 28.03.2008. 24. The writ petition is allowed. No order as to costs Miscellaneous petitions pending, if any in the writ petition shall stand closed.