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2015 DIGILAW 1688 (ALL)

Ramji Srivastava v. State of U. P.

2015-07-01

AMAR SINGH CHAUHAN, KRISHNA MURARI

body2015
JUDGMENT We have heard Shri M.N. Singh, learned counsel for the petitioner and learned Standing Counsel for the State respondents. 2. The case of the petitioner is that though the land of the petitioner was declared as surplus under the Urban Land (Ceiling and Regulation) Act, 1976 (in short hereinafter referred to as 'Act'), but actual physical possession has not been taken and, thus, he would be entitled to the benefit of sub-section (3) of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (in short hereinafter referred to as 'Repeal Act'). 3. Specific case of the petitioners is that actual physical possession had not been taken and mere symbolic possession would not be sufficient as the petitioners continue in possession of the plot in question. 4. The issue was considered by the Division Bench of this Court in the case of Ram Chandra Pandey vs. State of U.P. reported in 2010 (82) ALR 136, wherein it was held that mere symbolic possession does not amount to taking over actual physical possession. It was further held that unless actual physical possession has been taken by the State, the party would be entitled to the benefit of the Repeal Act, 1999. 5. The same view has been taken by the Apex Court in the case of State of U.P. vs. Hari Ram [ JT 2013 (4) SC 275: 2013 (4) SCC 280 ]. The question for consideration before the Apex Court in the said case was whether deemed vesting of surplus land under section 10(3) of the Act would amount taking over de facto possession depriving the landholders to the benefit of the saving clause under sub-section (3) of the Repeal Act. This issue was answered by the Apex Court in para 39 of the said judgment, which reads as under: - "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. 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. 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 land owner or holder can claim the benefit of Section 3 of the Repeal Act." 6. The same issue has been reaffirmed by the Apex Court in the case of Gajanan Kamlya Patil vs. Addl. Collector & Comp. Auth. & Ors. reported in JT 2014 (3) SC 211. 7. There is no material in the counter affidavit to demonstrate that the State has taken peaceful possession, nor there is any material to demonstrate that the possession was handed over by the petitioners voluntarily or was taken over by use of force. There is not even a whisper in respect of any notice having been issued under section 10(6) of the Act. The facts clearly indicates that only dejure possession has been taken by the State, not de facto possession, before coming into force of the Repeal Act. 8. The petitioner is, thus, entitled to get the benefit of the section 3 of the Repeal Act. In the facts and circumstances, the writ petition deserves to be allowed. 9. Accordingly, the writ petition succeeds and stands allowed. A writ of mandamus is issued commanding the respondents not to interfere in the actual physical possession of the petitioner over the land in dispute and they are further directed to restore the entry of the name of the tenure holders in the revenue records. There shall be no order as to costs.