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2016 DIGILAW 3616 (ALL)

POLU v. STATE OF U. P.

2016-11-03

ARUN TANDON, SUNITA AGARWAL

body2016
JUDGMENT By the Court.—Heard learned counsel for the parties. 2. The records of the present petition reflects that the predecessor in interest of the petitioners, namely Ratan Lal son of Makkhan was recorded as tenure holder of land comprising of plot No. 671-A, 632, 671-B, 466 total area of 11048.31 square meter. Out of the said area, land in plot No. 671 (Gata No. 671-A and 671-B) measuring 9048.31 sq. meter was declared surplus under Section 8(4) of the Urban Land (Ceiling and Regulation) Act, 1976. After completing the entire procedure prescribed under the Ceiling Act, the possession has been taken by the State Government and the name of the State Government is recorded in the revenue record. The notice under Section 10(3) was published on 9.11.1983 and notice dated 20.7.1985 was published under Section 10(5) of the Urban Land (Ceiling and Regulation) Act. The factum of receiving notice under Section 10 (5) of the Act has been admitted in para 10 of the writ petition. It is stated that though the notice under Section 10(5) of the Act was issued but still the possession of the land declared as surplus was not taken. 3. It is contended by the learned counsel for the respondent that after issuance of notice under Section 10(5) of the Urban Ceiling Act, the possession of the land in question was taken by the State Government through the competent authority, namely the Tehsildar, Moradabad. The name of the State Government was recorded in Khatauni as surplus under the Ceiling land. Copy of the extract of Khatauni of 1420 Fasali to 1425 Fasali has been appended with the supplementary counter-affidavit filed by Moradabad Development Authority. It is contended that the total surplus area of land approximately 9048.31 Sq. meters was transferred by the State Government to Moradabad Development Authority. It is contended that the remaining area of land .0201 hectare in Gata No. 671-M of Ratan Lal was also purchased by Moradabad Development Authority through sale-deed dated 27.3.2010 from Bhumidhar Raja Ram, who had purchased the land from the mother of the petitioner. 4. The name of Mordabad Development Authority is recorded in the revenue record on the basis of sale-deed executed by Raja Ram. This fact has been brought on record by means of supplementary counter-affidavit filed by Moradabad Development Authority. 4. The name of Mordabad Development Authority is recorded in the revenue record on the basis of sale-deed executed by Raja Ram. This fact has been brought on record by means of supplementary counter-affidavit filed by Moradabad Development Authority. Copy of the possession memo is appended as Annexure-C.A.-6 to the counter-affidavit filed by the State of U.P.. Though it is stated in para 11 of the writ petition that the petitioners are still in continuous possession over the land in question, however, it could not be disputed by the petitioners successfully before us that the land was transferred to Moradabad Development Authority by the State Government on 18.1.1990 after the notice under Section 10(5) of the Act was issued on 20.7.1985. 5. The issue with regard to taking of possession of the surplus land in absence of the notice under Section 10(6) of Ceiling Act has been examined by the Apex Court in the Case of State of Assam v. Bhaskar Jyoti Sarma and others, (2015) 5 SCC 321 . It is held by the Apex Court that issuance of notice under Section 10(6) is not necessary for delivery of possession of the land from the recorded tenure holders to the State Government. In the instant case, after notice under Section 10(5) of the Act is served and it is established from the record that the possession of the ceiling land was transferred to the State Government and Moradabad Development Authority. Merely, because the notice under Section 10(6) of the Act has not been issued, it cannot be assumed that the possession was still with the tenure holder. 6. The Division Bench of this Court in the Case of Shiv Ram Singh v. State of U.P. and others, (2015)7 ADJ 630 , has held that actual physical possession of the land can be taken after issuance of the notice under Section 10(5) of the Act. The possession of the land, if taken, on the fact that the owner did not resist taking over of possession, he cannot be said to have suffered any real prejudice. Only a case where the tenure holder resists the peaceful possession, requirement to issue notice under Section 10(6) of the Act arose. 7. In the instant case, record establish beyond doubt that the possession of the disputed property was transferred to Moradabad Development Authority as early as in the year, 1990. Only a case where the tenure holder resists the peaceful possession, requirement to issue notice under Section 10(6) of the Act arose. 7. In the instant case, record establish beyond doubt that the possession of the disputed property was transferred to Moradabad Development Authority as early as in the year, 1990. Further from the sale-deed executed in favour of Moradabad Development Authority for the remaining area of land in question, it is more than apparent that the petitioners were well aware of the fact of declaration of surplus land under the Ceiling Act. The land which has been declared surplus has specifically been excluded from the total area of land to be sold in favour of the Moradabad Development Authority. This fact establishes that the possession was taken from the petitioner and the surplus land was handed over to the Moradabad Development Authority. 8. For all the above noted reasons, we do not accept the argument raised by learned counsel for the petitioners that the petitioners are entitled to the benefit of the Repeal Act. The writ petition lacks merit and is accordingly, dismissed.