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Allahabad High Court · body

2017 DIGILAW 2925 (ALL)

BILATUN NISHA v. STATE OF U. P.

2017-12-14

ARVIND KUMAR TRIPATHI, SALIL KUMAR RAI

body2017
JUDGMENT : By the Court.—Heard learned counsel for the petitioner and Sri Ram Raj Singh, learned counsel for Allahabad Development Authority, Allahabad (hereinafter referred to as, ‘A.D.A’) as well as learned Standing Counsel. 2. As the issues involved in the abovementioned writ petitions are identical and the facts in all these writ petitions are also similar, therefore, all the abovementioned writ petitions are being decided by a common judgment. However, the facts of writ petition No. 50519 of 2014 shall be stated and considered in detail. Facts stated in other writ petitions and facts brought on record by the State Government in their counter-affidavits and supplementary counter-affidavits filed in other writ petitions are almost the same as in the leading writ petition No. 50519 of 2014. It is worthwhile to note that paragraph No. 6 of the supplementary counter-affidavit filed by the State Government in writ petition No. 50519 of 2014 has been reproduced in verbatum in the supplementary counter-affidavits filed in other three writ petitions and in none of the writ petitions any counter-affidavit has been filed on behalf of A.D.A. However, the facts regarding the present situation of the surplus/disputed lands have been admitted by the counsel for A.D.A. during the arguments in all these writ petitions. The only difference in writ petitions relate to the dates regarding proceedings of the Act, 1976 and the case number registered in response to the statement filed by the landholders under Section 6(1) of the Act, 1976. 3. In writ petition No. 50519 of 2014 the petitioner has stated that her husband late Mohd. Hafees Ulla was owner of disputed plot declared as surplus under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as, ‘Act, 1976’). The husband of the petitioner had filed his statement under Section 6(1) of the Act, 1976, which was numbered as Case No. K-1762/4880/1976 (State v. Hafees Ulla). In the aforesaid case an order was passed under Section 8(4) of the Act, 1976 without issuing any notice under Section 8(3) of the Act, 1976. The said order under Section 8(4) was passed on 15.1.1985 and it has been stated in the writ petition that subsequent to the aforesaid order, notice was issued to the husband of the petitioner under Section 10(5) of the Act, 1976 on 17.5.1996. The said order under Section 8(4) was passed on 15.1.1985 and it has been stated in the writ petition that subsequent to the aforesaid order, notice was issued to the husband of the petitioner under Section 10(5) of the Act, 1976 on 17.5.1996. The petitioner has further stated that the order passed under Section 8(4) of the Act, 1976 was never communicated to her husband disabling him from filing an appeal under Section 33 of the Act, 1976. It is further submitted that husband of the petitioner had never surrendered or delivered possession to the respondent-State Authorities in response to the notice issued under Section 10(5) of the Act, 1976 or otherwise and no forcible possession of the disputed land was taken by the State or any person authorized by it under Section 10(6) of the Act, 1976. However, the petitioner has stated in the writ petition that after the notification issued under Section 10(3) of the Act, 1976 revenue records were revised recording the State Government against the disputed land and merely on the basis of said entries in the revenue records, the State Government is assuming title over the disputed land, even though no possession was ever delivered or forcibly taken over by the State Government. It has been stated in the writ petition that on the cut off date i.e. 18.3.1999, as well as at present, the petitioner and previously the husband of the petitioner was in actual physical possession of the disputed land. The petitioner has contended that in view of the aforesaid facts she is entitled to the benefit of Sections 3/4 of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as, ‘Act, 1999) and as proceedings in Case No. K-1762/4880/1976 have abated, hence mandamus is liable to be issued to the respondents to appropriately correct the revenue records and not to interfere in the peaceful possession of the petitioner over the disputed land. 4. In the counter-affidavit filed on behalf of respondent Nos. 2 and 3 and in supplementary counter-affidavit filed on behalf of respondent Nos. 1 to 3, it has been admitted that Case No. K-1762/4880/1976 was registered under the Act, 1976 on the statement filed by Mohd. Hafeej Ulla, husband of the petitioner, under Section 6(1) of the Act, 1976. 4. In the counter-affidavit filed on behalf of respondent Nos. 2 and 3 and in supplementary counter-affidavit filed on behalf of respondent Nos. 1 to 3, it has been admitted that Case No. K-1762/4880/1976 was registered under the Act, 1976 on the statement filed by Mohd. Hafeej Ulla, husband of the petitioner, under Section 6(1) of the Act, 1976. It has been stated in the counter-affidavit that after preparing the draft statement under Section 8(3) of the Act, 1976, notice was served on the land holders on 2.7.1979 and an order was passed by the competent authority under Section 8(4) of the Act, 1976 declaring the disputed land as surplus land. The total area declared as surplus was 21902.45 square meters. Subsequently, an advertisement dated 30.6.1986 under Section 10(1) of the Act, 1976 was published and a notification under Section 10(3) of the Act, 1976 was published in the Government Gazette on 23.3.1996. It has been further stated in the counter-affidavit that a notice dated 26.5.1996 under Section 10(5) of the Act, 1976 was issued to the landholders and on 11.12.1996, the disputed/surplus land was handed over in the custody of A.D.A. In paragraph No. 6 of the supplementary counter-affidavit it has been admitted that no procedure prescribed in law was ever adopted for taking possession of the disputed land, which was declared as surplus under the Act, 1976. Paragraph No. 6 of the supplementary counter-affidavit is reproduced below : “That according to record of concern case no proceeding in regard of taking possession in accordance with law has been adopted. Neither the petitioner surrendered or delivered possession thereof to the State Government or any person duly authorized by the State Government nor proceeding for taking possession by issuing requisite form etc. for taking possession in accordance with law has been adopted. No possession memo (Dakhalnama) was executed by the then competent authority of Urban Land Ceiling.” (Emphasis added) 5. The averments made in the counter-affidavit have been adopted by the learned counsel for A.D.A., who has filed an impleadment application seeking impleadment of A.D.A. as respondent No. 4 in the present writ petition. 6. It has been admitted at Bar by learned Standing Counsel as well as learned counsel for A.D.A. that no constructions or development work have yet started on the disputed land. 7. 6. It has been admitted at Bar by learned Standing Counsel as well as learned counsel for A.D.A. that no constructions or development work have yet started on the disputed land. 7. It has been argued by Shri Raj Karan Yadav, learned counsel for the petitioner that in view of the averments made in paragraph No. 6 of the supplementary counter-affidavit and in view of the law laid down by Hon’ble Supreme Court in State of U.P. v. Hari Ram, 2013 (4) SCC 280 and by this Court in State of U.P. v. Balbir Singh and another, 2016(2) ADJ 607 , the writ petitions are liable to be allowed with the reliefs as prayed by the petitioners. 8. Refuting the aforesaid arguments of the learned counsel for the petitioner, learned Standing Counsel as well as learned counsel for A.D.A. have argued that on publication of the notification under Section 10(3) of the Act, 1976 in the Government Gazette on 23.3.1996, the land vested absolutely in the State Government free from all encumbrances, hence petitioners are not entitled to the benefit of Act, 1999 merely because actual physical possession was not taken from them in compliance of the notice issued under Section 10(5) of the Act, 1976 or by use of force under Section 10(6) of the Act, 1976. Learned Standing Counsel and learned counsel for A.D.A. have further argued that the present writ petitions have been filed after approximately 15 years of the enactment of Act, 1999, and are barred by laches as revenue records were also corrected recording the name of the State Government before the enactment of the Repeal Act. It was also argued on behalf of the respondents that the disputed land was allotted to the A.D.A. and therefore it shall be deemed that physical possession of disputed land stood transferred to the State Government and subsequently to A.D.A. In support of their aforesaid arguments the Standing Counsel and counsel for A.D.A. have relied on the judgments of Hon’ble Supreme Court in State of Assam v. Bhaskar Jyoti Sarma and others, (2015) 5 SCC 321 and Sulochana Chandrakant Galande v. Pune Municipal Transport and others, (2010) 8 SCC 467 , as well as judgement of this Court in Shiv Ram Singh v. State of U.P. and others, 2015(7) ADJ 630 (DB). 9. Considered the rival submission of the learned counsel for the parties and perused the record. 9. Considered the rival submission of the learned counsel for the parties and perused the record. 10. In view of facts stated in paragraph 6 of the supplementary counter-affidavit, it is an admitted position that the State Government never got actual physical possession of the disputed land as possession of the same was never surrendered by the land holders or delivered to the State Government in compliance of the notice issued under Section 10(5) of the Act, 1976 and no forcible possession was taken by the State Government under Section 10(6) of the Act, 1976. Further, it would be evident from the contents of paragraph No. 6 of the supplementary counter-affidavit that no possession memo was ever executed by the competent authority under the Act, 1976. From the aforesaid facts, it is evident that the petitioners are still in actual physical possession of the disputed land. The Standing Counsel has argued that petitioners are not entitled to the benefit of Sections 3/4 of the Act, 1999 as the land vested absolutely in the state Government pursuant to the notification issued under Section 10(3) of the Act, 1976. 11. The consequence of notification published under Section 10(3) of the Act, 1976 was considered by the Hon’ble Supreme Court in Hari Ram (Supra). The question whether the tenure holder can be denied the benefit of Sections 3/4 of the Act, 1999 merely because a notification under Section 10(3) of the Act, 1976 was issued and published in the Official Gazette even though the tenure holder had never voluntarily surrendered possession of the disputed plots in compliance of the notice issued under Section 10(5) of the Act, 1976 to the State Government or any person authorized in this behalf and when even after non-compliance of the notice under Section 10(5) of the Act, 1976, no proceedings were instituted by the State Government or by the Competent Authority for taking over forcible possession under Section 10 (6) of the Act, 1976 is no more res integra. The said question was decided by the Hon’ble Supreme Court in the case of Hari Ram (Supra). In the aforesaid case, the Hon’ble Supreme Court while interpreting the phrase “deemed to have been acquired” used in Section 10(3) of the Act, 1976 held that the said phrase could only mean acquisition of title or acquisition of interests as enumerated under Section 2(l) of the Act. In the aforesaid case, the Hon’ble Supreme Court while interpreting the phrase “deemed to have been acquired” used in Section 10(3) of the Act, 1976 held that the said phrase could only mean acquisition of title or acquisition of interests as enumerated under Section 2(l) of the Act. In the aforesaid case, the Hon’ble Apex Court held that, “shall be deemed to have vested absolutely in the State Government” used in Section 10(3) of the Act, 1976 means only de jure possession vests in the State and not de facto possession, and therefore, if the tenure holder has not voluntarily surrendered possession under sub-section (3) of Section 10 or in compliance of notice under Section 10(5) of the Act, 1976 or has not been dispossessed by use of force under Section 10(6) of the Act, 1976 it cannot be said that the State Government had taken possession of the vacant land. In paragraph No. 42 of the aforesaid judgment, the Hon’ble Apex Court has held: “39. 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. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act.” 12. Learned counsels for the respondents have relied on the judgement of Hon’ble Supreme Court in State of Assam v. Bhaskar Jyoti Sarma and others, (2015) 5 SCC 321 . We fail to appreciate reference to the abovementioned judgement referred by the respondents in support of their argument that the petitioners are not entitled to the benefit of Repeal Act because a notification regarding surplus land was published under Section 10(3) of the Act, 1976 and notice was issued to them under Section 10(5) of the Act, 1976. We fail to appreciate reference to the abovementioned judgement referred by the respondents in support of their argument that the petitioners are not entitled to the benefit of Repeal Act because a notification regarding surplus land was published under Section 10(3) of the Act, 1976 and notice was issued to them under Section 10(5) of the Act, 1976. The question before the Hon’ble Supreme Court in the aforementioned case was whether failure of the Government to issue notice to the land owners in terms of Section 10(5) of the Act, 1976 would by itself mean that dispossession of land owners is no dispossession in the eye of law and hence sufficient to attract Section 3 of the Repeal Act. The aforesaid question was answered in the negative by the Hon’ble Supreme Court. In the aforesaid case the Hon’ble Supreme Court referred to the judgement of Hari Ram (Supra) in holding that possession means ‘actual physical possession’, but further held that if actual possession has been taken over by the State before the enforcement of Repeal Act then omission to issue notice under Section 10(5) of the Act, 1976 would be a mere irregularity and would not be sufficient to enable the landholders to claim the benefit of Repeal Act. The Hon’ble Supreme Court held that in case landholders are dispossessed without being served notice under Section 10(5) of the Act, 1976, they ought to raise their grievance within a reasonable time of such dispossession and if they do not do so, then forcible taking over of possession would acquire legitimacy by sheer lapse of time. The Hon’ble Supreme Court in the aforementioned case did not hold that the landholders would not be able to seek the benefit of Repeal Act even if they were in actual physical possession of the surplus land and had not been dispossessed from the same by the State Government or by any competent authority appointed on that behalf even though notices had been issued to them under Section 10(5) of the Act, 1976. The relevant extracts from the judgement of the Hon’ble Supreme Court are reproduced below : “11. The relevant extracts from the judgement of the Hon’ble Supreme Court are reproduced below : “11. Section 3 of the Repeal Act postulates that vesting of any vacant land under sub-section (3) of Section 10, is subject to the condition that possession thereof has been taken over by the competent authority or by the State Government or any person duly authorised by the State Government. The expression “possession” used in Section 3 (supra) has been interpreted to mean “actual physical possession” of the surplus land and not just possession that goes with the vesting of excess land in terms of Section 10(3) of the Act. 12. The question, however, is whether actual physical possession of the land in dispute has been taken over in the case at hand by the competent authority or by the State Government. 13. The case of the appellant is that actual physical possession of the land was taken over on 7th December, 1991 no matter unilaterally and without notice to the erstwhile land owner. That assertion is stoutly denied by the respondents giving rise to seriously disputed question of fact which may not be amenable to a satisfactory determination by the High Court in exercise of its writ jurisdiction. But assuming that any such determination is possible even in proceedings under Article 226 of the constitution, what needs examination is whether the failure of the Government or the authorised officer or the competent authority to issue a notice to the land owners in terms of Section 10(5) would by itself mean that such dispossession is no dispossession in the eye of law and hence insufficient to attract Section 3 of the Repeal Act. Our answer to that question is in the negative. 14. We say so because in the ordinary course actual physical possession can be taken from the person in occupation only after notice under Section 10(5) is issued to him to surrender such possession to the State Government, or the authorised officer or the competent authority. There is enough good sense in that procedure inasmuch as the need for using force to dispossess a person in possession should ordinarily arise only if the person concerned refuses to cooperate and surrender or deliver possession of the lands in question. That is the rationale behind Sections 10(5) and 10(6) of the Act. There is enough good sense in that procedure inasmuch as the need for using force to dispossess a person in possession should ordinarily arise only if the person concerned refuses to cooperate and surrender or deliver possession of the lands in question. That is the rationale behind Sections 10(5) and 10(6) of the Act. But what would be the position if for any reason the competent authority or the Government or the authorised officer resorts to forcible dispossession of the erstwhile owner even without exploring the possibility of a voluntary surrender or delivery of such possession on demand. Could such use of force vitiate the dispossession itself or would it only amount to an irregularity that would give rise to a cause of action for the aggrieved owner or the person in possession to seek restoration only to be dispossessed again after issuing a notice to him? It is this aspect that has to an extent bothered us. 15... The High Court has held that the alleged dispossession was not preceded by any notice under Section 10(5) of the Act. Assuming that to be the case all that it would mean is that on 7th December, 1991 when the erstwhile owner was dispossessed from the land in question, he could have made a grievance based on Section 10(5) and even sought restoration of possession to him no matter he would upon such restoration once again be liable to be evicted under Sections 10(5) and 10(6) of the Act upon his failure to deliver or surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as prescribed, it may still be not enough for him to retain the land for the authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5). It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that no notice under Section 10(5) had been served upon him. 16. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure. 17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram’s case (supra). That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram’s case (supra) considering whether the word ‘may’ appearing in Section 10(5) gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of law did not fall for consideration in that case. In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant’s version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because Bhabadeb Sarma-erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so. (Emphasis added) 13. The other argument raised by the counsels for the respondents is that the petitioners are not entitled to the benefit of Act, 1999 as revenue records were revised recording the State Government against the disputed land prior to the enforcement of the Act, 1999 and the writ petitions are barred by laches as the same have been filed 15 years after the enactment of Act, 1999. 14. The significance of mutation and entries in the revenue records in favour of the State Government and its relevance to decide whether the landholders are entitled to the benefit of Act, 1999 was considered by this Court in Chabi Nath v. State of U.P. through its Secretary, Department of Urban Land Ceiling and others, 2005 (59) ALR 413. The relevant portion of the aforesaid judgement is reproduced below : “15. Consequently, even if an entry is made in revenue records, in favour of State, it is inconsequential so far as the applicability of Section 3 of Repealing Act is concerned. 16. The view taken by us and the interpretation of Section 3 of the repealing Act (as noted above) is fully supported in view of Section 11 of the Act.” 15. The aforesaid view was followed by this Court in Sugreev v. State of U.P. and others, 2011(7) ADJ 490 . In paragraph Nos. 16. The view taken by us and the interpretation of Section 3 of the repealing Act (as noted above) is fully supported in view of Section 11 of the Act.” 15. The aforesaid view was followed by this Court in Sugreev v. State of U.P. and others, 2011(7) ADJ 490 . In paragraph Nos. 8 and 12 of the judgement, a Division Bench of this Court held that mere mutation of name without taking proceedings for actual physical possession would be of no use and the landholders cannot be deprived of the benefit of Repeal Act merely because the State Government was recorded in the Revenue records relating to the plots. Paragraph Nos. 8 to 12 of the aforesaid judgement are reproduced below : “8. Even leaving apart this point, it is also clear that after this order dated 30.10.84 the name of the State Government was mutated in the revenue record but it has to be seen as to whether mere mutation of name in the revenue record without taking actual physical possession on the spot according to the mandate of the urban Ceiling and the Regulation Act is sufficient. According to the legal position mere mutation of name without taking proceedings for actual physical possession as mentioned under Sections 10(5) and 10(6) are of no use. According to 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 authorised by the State Government in this behalf within thirty days of the service of the notice. So under this Section issuance of notice to the land holder having possession of the land to surrender or deliver possession of the land within 30 days from the date of service of notice is necessary. In the counter-affidavit no document has been filed on behalf of the State Government to show that any notice under Section 10(5) which was issued was ever served upon the petitioner. Regarding report of service of notice no document has been filed in this regard to corroborate the fact that notice under Section 10(5) was ever issued to the petitioner. In the counter-affidavit no document has been filed on behalf of the State Government to show that any notice under Section 10(5) which was issued was ever served upon the petitioner. Regarding report of service of notice no document has been filed in this regard to corroborate the fact that notice under Section 10(5) was ever issued to the petitioner. Even no other document has been filed to show that within 30 days of service of any such notice, the land holder had surrendered or delivered the possession of the surplus land in favour of the State. No memorandum of possession by way of surrender or delivery of the land by the landholder has been produced to corroborate this fact. So far as the mandate under Section 10(6) of the Act is concerned it lays down as under. 9. Section 10(6) of the Act provides that 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. 10. There is not even murmur or whisper in the counter-affidavit regarding any proceedings under Section 10(6) of the Act and that no memo of possession as taken on the spot by way of necessary force has been filed. 11. In this connection, the learned counsel for the petitioner has relied on a case law as cited in 2005 (I) RJ 548 in civil misc. writ petition No. 6354 of 2003 wherein it has been held that Effect of entry in favour of State in revenue records without taking action to take possession under Section 10(5) and 10(6) of Urban Land (Ceiling and Regulation) Act, 1976 from actual tenure holder- cannot be deprived of the benefit of the Repeal Act- Petition allowed. 12. According to the aforesaid ruling as cited above if actual physical possession under Section 10(5) or 10(6) has not been taken and mere name of the State Government has been mutated, that will not be sufficient and land holder cannot be deprived of the benefit of the Repeal Act. 12. According to the aforesaid ruling as cited above if actual physical possession under Section 10(5) or 10(6) has not been taken and mere name of the State Government has been mutated, that will not be sufficient and land holder cannot be deprived of the benefit of the Repeal Act. The Repeal Act (under Section 4 Abatement of Legal proceedings) provides that 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 any 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 insofar as such proceedings are relatable to the land, 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.” (Emphasis added) 16. The learned counsel for A.D.A. has also argued that as the disputed land has been allotted to the A.D.A., therefore, under law it shall be deemed that possession of the disputed land was transferred to the State Government and consequentaly from the State Government to the A.D.A. and thus, the writ petitions are liable to be dismissed. 17. In Lalla and others v. State of U.P. and others, 2014 (107) ALR 484, a Division Bench of this Court discussed the effect of Government orders issued prior to the Repeal Act, 1999 whereby management of surplus land had been transferred to local authorities/development authorities and it was contended by the State Government that on account of service of notice under Section 10(3)or 10(5) of the Act, 1976 coupled with the Government order, the State or its agencies have perfected their Right over the surplus land and possession of surplus land would be presumed to be with the local authorities/development authorities. In paragraph No. 11 of the aforesaid judgement this Court held that the land for the purposes of management would vest in the local authorities/development authorities only when the State came in valid possession over land, pursuant to lawful proceedings under Section 10(5) or 10(6) of the Act. In paragraph No. 11 of the aforesaid judgement this Court held that the land for the purposes of management would vest in the local authorities/development authorities only when the State came in valid possession over land, pursuant to lawful proceedings under Section 10(5) or 10(6) of the Act. Paragraph No. 11 of the said judgment is reproduced below : “The land for the purposes of management would vest in the local authorities/development authorities only when the State came in valid possession over land, pursuant to lawful proceedings under Section 10(5) or 10(6) of the Act. The local authorities/development authorities merely steps into shoes of the State Government. If the State Government through the Collector/District Magistrate has not taken possession over the land in question, as contemplated by law, the transfer of possession in favour of the local authorities/development authorities cannot be presumed under Government order. If the possession of land has not been taken by the State, as per the procedure already determined by the Apex Court, the local authorities/development authorities cannot claim independent right over the land merely on the strength of the Government order. 18. Identical view was taken by this Court in Subhash Chandra v. State of U.P. and others, 2015(8) ADJ 382 and the Court in paragraph No. 15 of the said judgment held, “Once the State has failed to establish that it took over actual physical possession of the land declared surplus, the State will have no right over the said land nor it can transfer in favour of any person.” 19. The law laid down by the Hon’ble Supreme Court and this Court in their different judgements referred above can be summarized as follows : (a) The consequence of a declaration under Section 10(3) of the Act, 1976 is that only de-jure possession of surplus land vests in the State Government and not de-facto possession. (b) The mere vesting of surplus land under Section 10(3) of the Act, 1976 would not confer any right on the State Government to have de-facto possession of the said land after the Repeal Act, 1999 unless the State Government is able to establish that there was a voluntary surrender of excess vacant land or surrender and peaceful delivery of possession under Section 10(5) of the Act, 1976 or forceful dispossession under Section 10(6) of the Act, 1976 before 18.3.1999. (c) If the landholder is dispossessed by use of force without a notice under Section 10(5) of the Act, 1976, he has to raise his grievance within a reasonable time of such dispossession and on his failure to do so, the land owner would be deemed to have waived his Right under Section 10(5) of the Act, 1976. (d) On failure of the State Government to establish any of the situations enumerated in Para (b), the landholders would be entitled to the benefit of the Repeal Act. (e) If the State Government has not taken actual physical possession of the excess vacant land, then mere mutation in the Revenue records in favour of the State Government would be of no use and the landholders cannot be deprived of the benefit of Repeal Act. (f) If the State Government has not taken over actual physical possession of the excess vacant land before 18.3.1999 it cannot transfer the same in favour of any person or local authority and such person or local authority cannot claim any right over the said land merely because land was allotted to them by the State Government. 20. It is evident that while considering whether the landholder is entitled to the benefit of Repeal Act, 1999 the only determinative factor is whether the State Government had taken actual physical possession of the excess vacant land before 18.3.1999 and the landholders cannot be denied the benefit of Repeal Act if the State Government has not taken actual physical possession of the vacant land as aforesaid. Applying the abovestated propositions in the present case and in the light of admission by the State Government in paragraph No. 6 of its supplementary counter-affidavit (reproduced previously in the judgement) that actual physical possession of vacant/disputed land was not taken by the State Government, we hold that the petitioners are entitled to the benefit of Repeal Act and cannot be denied the said benefit merely because the Revenue records relating to the disputed land had been modified in favour of the State Government and the said land has been allotted to the A.D.A. 21. The next argument of the counsels for the respondents is that the writ petitions are barred by laches as the same have been filed approximately 15 years after the Repeal Act was enacted. The next argument of the counsels for the respondents is that the writ petitions are barred by laches as the same have been filed approximately 15 years after the Repeal Act was enacted. There is no prescribed period of limitation for proceedings under Article 226 of the Constitution of India. The provisions of the Limitation Act, 1963 do not apply to writ proceedings. The aforesaid is settled law and we do not wish to load the judgement by referring to numerous judicial precedents expressing the aforesaid proposition. The judgement of Hon’ble Supreme Court in Smt. Sudama Devi v. Commissioner and others, (1983) 2 SCC 1 , in a concise form, states the law on the subject. The relevant extract from the aforesaid judgement is reproduced below : “We are of the view that so far as Writ Petition under Article 226 of the Constitution is concerned, there can be no hard and fast rule of 90 days by way of period of limitation but the general rule of laches alone can be applied and this must necessarily depend on the facts and circumstances of each case. The High Court has said in its order that “the writ petition was beyond time by 136 days. Neither the explanation of 136 days nor the explanation for filling it today, was given.” This view does not appear to be correct because the High Court has proceeded on the assumption that there is a period of limitation of 90 days and unless sufficient cause is shown as contemplated under Section 5 of the Limitation Act, a writ petition filed after the expiration of 90 days is liable to be rejected. This assumption is wholly unjustified. There is no period of limitation prescribed by any law for filing a writ petition under Article 226 of the Constitution. It is in fact doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt, that no such period of limitation can be laid down either under rules made by the High Court or by practice. In every case it would have to be decided on the facts and circumstances, whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as a period of limitation. In every case it would have to be decided on the facts and circumstances, whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as a period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner...” 22. The petitions have been filed 15 years after the enactment of the Repeal Act, 1999. The issue in the present petitions is whether the mere gap of 15 years between the enactment of Repeal Act and institution of writ petition is evidence of laches on the part of the petitioners and fatal for the petitioners ? 23. The law relating to laches has been explained by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd, Abram Farewell and John Kemp, Law Reports 5 PC 221, as follows : “Now the doctrine of laches in Courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.” (As reproduced in paragraph No. 9 of Moon Mills Limited v. M.R. Meher, Industrial Court Bombay, AIR 1967 SC (1450)) (Emphasis added) 24. It would be appropriate to refer to certain other judgements of the Supreme Court explaining the law relating to laches so far they are relevant for decision of the present case. 25. In Dehri Rohtas Light Railway v. District Board Bhojpur and others, (1992) 2 SCC 598 , the Supreme Court observed in paragraph No. 13 as under : “The rule which says that the Court may not inquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Trilok Chand (supra) relied on is distinguishable on the facts of the present case. The levy is based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that suit has been rightly dismissed.” (Emphasis added) 26. The Supreme Court in U.P. Jal Nigam and another v. Jaswant Singh and another, (2006) 11 SCC 464 , referred, with approval the law relating to laches, as summarized in Halsbury’s Law of England. We however agree that suit has been rightly dismissed.” (Emphasis added) 26. The Supreme Court in U.P. Jal Nigam and another v. Jaswant Singh and another, (2006) 11 SCC 464 , referred, with approval the law relating to laches, as summarized in Halsbury’s Law of England. The relevant extract from the aforesaid judgement is reproduced below : “12. The statement of law has also been summarized in Halsbury’s Laws of England, Para 911, pg. 395 as follows : “In determining whether there has been such delay as to amount to laches, the chief points to be considered are : (i) acquiescence on the claimant’s part; and (ii) any change of position that has occurred on the defendant’s part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.” (Emphasis added) 27. In Tukaram Kana Joshi and others v. MIDC and others, (2013) 1 SCC 353 , the Supreme Court observed as follows : 12. The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. 13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party’s defence must be tried upon principles substantially equitable. (Vide: P.S. Sadasivaswamy v. State of T.N., AIR 1974 SC 2271 ; State of M.P. and others v. Nandlal Jaiswal and others, AIR 1987 SC 251 ; and Tridip Kumar Dingal and others v. State of West Bengal and others, (2009) 1 SCC 768 ;) 14. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The Court should not harm innocent parties if their rights have infact emerged, by delay on the part of the Petitioners. (Vide: Durga Prasad v. Chief Controller of Imports and Exports and others, AIR 1970 SC 769 ; Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 SC 1353 ; Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur and others, AIR 1993 SC 802 ; Dayal Singh and others v. Union of India and others, AIR 2003 SC 1140 ; and Shankara Co-op Housing Society Ltd. v. M. Prabhakar and others, AIR 2011 SC 2161 ) 15. In the case of H.D Vora v. State of Maharashtra and others, AIR 1984 SC 866 , this Court condoned a 30 year delay in approaching the Court where it found violation of substantive legal rights of the applicant. In that case, the requisition of premises made by the State was assailed.” (Emphasis added) 28. In Vivek Exports v. State of Karnataka and others, (2014) 10 SCC 809 , the Supreme Court rejected the plea of delay and laches in a challenge to renewal of quarry lease on the ground that the delay in challenging the renewal had not worked to the disadvantage of the appellant and had not altered the position of the appellant to his detriment so as to make any interference in the grant in his favour inequitable. The Supreme Court further held that plea of delay would not be enough to defeat any challenge to the exercise of power by the Government if the action of the Government amounts to a fraud on its power. Relevant extracts of the abovementioned judgement are reproduced below : “11. The Supreme Court further held that plea of delay would not be enough to defeat any challenge to the exercise of power by the Government if the action of the Government amounts to a fraud on its power. Relevant extracts of the abovementioned judgement are reproduced below : “11. The main contention of the appellant is that the third respondent has challenged the renewal of the quarry lease after 9 years of its grant and in the absence of proper explanation, the writ petition is liable to be dismissed on the ground of delay and laches. It is the contention of the third respondent that he applied for quarry lease over subject land on 13.8.2008 and, thereafter only he learnt about the grant of lease to the appellant and after collecting the details, he filed the writ petition challenging the grant of renewal as well as the order rejecting his application for grant of lease. 12. Delay in this case has not worked to disadvantage of appellant as he has worked the lease for nearly 10 years No matter the lease was renewed, the grant itself was held illegal by the High Court. Delay would have assumed importance if the petitioner had altered his position to his detriment, so as to make any interference to the grant in his favour inequitable. No such plea was raised by the appellant before the High Court or in this appeal. Mr. Dushyant A. Dave, learned senior counsel, feebly argued that the appellant had changed his position to his detriment. But when called upon to substantiate the plea on the basis of record he fairly conceded that not only the averments made were inadequate but no supporting material was placed on record. Therefore, candidly he gave up the plea based on estoppel promissory or otherwise and rested his case only on delay. 13. In a case where lease has been quashed by the Court for whatever reason, granting renewal of such a quashed lease was impermissible and may amount to a fraud on the power of renewal exercised by the State Government. Such being the position, delay is not enough to defeat the action brought by the third respondent before the High Court. In a case where lease has been quashed by the Court for whatever reason, granting renewal of such a quashed lease was impermissible and may amount to a fraud on the power of renewal exercised by the State Government. Such being the position, delay is not enough to defeat the action brought by the third respondent before the High Court. While dealing with the exercise of power under Article 136 of the Constitution of India, this Court in the decision in Royal Orchid Hotels Limited and another v. G. Jayarama Reddy and others, JT 2011 (11) SC 346 : 2011 (10) SCC 608 , observed thus: “Another principle of law of which cognizance deserves to be taken is that in exercise of power under Article 136 of the Constitution, this Court would be extremely slow to interfere with the discretion exercised by the High Court to entertain a belated petition under Article 226 of the Constitution of India. Interference in such matters would be warranted only if it is found that the exercise of discretion by the High Court was totally arbitrary or was based on irrelevant consideration.” (Emphasis added) 29. In State of Uttar Pradesh and others v. Arvind Kumar Srivastava and others, (2015) 1 SCC 347 , the Supreme Court while dealing with delay in approaching the Court in service matters observed as follows : “22.1 Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2 However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2 However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 22.3 However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma and others v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.” (Emphasis added) 30. The principle of law laid down in the aforesaid judgements of Hon’ble Supreme Court can be summarized as follows : (a) There is no period of limitation prescribed by any law for filing a writ petition under Article 226 of the Constitution of India. (b) No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. (b) No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. In any case, the test is not to physical running of time. (c) The discretion of the Courts under Article 226 of the Constitution of India must be exercised fairly and justly so as to promote justice and not to defeat it. (d) The validity of the party’s defence must be tried upon principles substantially equitable and if the claim made by the applicant is legally sustainable and the illegality is manifest the petitioner cannot be denied relief on the sole ground of laches as power under Article 226 of the Constitution of India is exercised to effectuate the rule of law and not to abrogate it. (e) Delay in filing the writ petition would be relevant where the delay can be treated as equivalent to a waiver of the right by the petitioner or by his conduct, the petitioner has done that which might fairly be regarded as equivalent to a waiver of it. (f) Delay would be important and relevant in refusing a remedy to the petitioner if because of delay the opposite parties in the case had altered their possession to their detriment so as to make any interference to the grant in favour of the petitioner inequitable or unreasonable. The Courts would also refuse to interfere under Article 226 of the Constitution of India in favour of the petitioner where parallel third party rights are created due to delay in filing the writ petition. (g) If the matter in issue before the Courts shocks the judicial conscience, the Court should exercise the discretion more so, when no third party interest is involved. (h) The petitioner cannot be denied relief under Article 226 of the Constitution of India on the sole ground of delay in filing the writ petition if, for the relief prayed by them, they are relying on a previous judgement of the Court given in similar circumstances which is a judgement in-rem obliging the State Authorities to act in a particular manner in a particular given situation and the grievance of the petitioners in the writ petition, in effect is, that the State Authorities are not acting in the manner stated in the aforesaid judgement. The aforesaid is not a complete exposition of law relating to laches and the circumstances in which a relief may be granted or refused by the Courts under Article 226 of the Constitution of India when a defence of delay in fling a writ petition is raised but a summary of law only to the extent it is relevant for a decision of the present cases. 31. Before we test the present writ petitions on the touchstone of law as summarised above it would be pertinent to refer to certain judgments of this Court. 32. In Lalla (Supra) the Division Bench of this Court deprecated the tendency of the State Government to deny the benefit of the Repeal Act, 1999 to the landholders merely because notices under Section 10(3) or 10(5) of the Act, 1976 were issued to them. Such act of the State Government led to unnecessary litigation. The Division Bench, after opining that the dispute relating to the benefit of Repeal Act, 1999 to the landholders can be easily resolved by the Executive itself if appropriate instructions are issued by the Government clarifying the true import of the Repeal Act as per law laid down by the Apex Court, directed the State Government to examine the matter at its own level and issue necessary guidelines clarifying the law relating to Repeal as settled by the Apex Court. Relevant extracts of the said judgement are reproduced below : “12.We are of the view that large number of pending writ petitions before this Court, as well as disputes pending at the level of the District Magistrate etc. can be conveniently resolved, if the State Government at its own level issues appropriate Government instructions in light of the law settled by the Apex Court, providing that possession of land declared surplus cannot be taken by the local authorities/development authorities or other state agencies, merely by Government orders and that only where possession of land declared surplus has been delivered to State peacefully by the tenure holders pursuant to Section 10(5), or possession is forcibly taken by the State Government pursuant to notice under Section 10(6), the benefit of Repeal Act of 1999 would enure to the tenure holders. The intention of legislature is clear, once the State has adopted the Repeal Act 1999 on 18.3.1999, the State must take all steps to implement its legislation and allow the consequences of repeal to the benefit of the tenure holders and the tendency to somehow or the other hold on to claim merely because notices under Section 10(3) or 10(5) have been issued/served, must not be encouraged/tolerated. 13.We hope and trust that State Government would examine this matter forthwith and necessary directions/Government orders would be issued, expeditiously, clarifying the situation, as indicated above, and thereby avoid unnecessary litigation before this Court and also before other forums/authorities. Learned counsels’ appearing for the parties have informed, at the bar, that in District Allahabad alone, more than 5000 matters are pending at different levels. Most of such disputes can all be sorted out by issuance of appropriate instructions by Government itself clarifying the true import of the Repeal Act, as per law laid down by the Apex Court. 14.The writ petitions, therefore, are allowed. We further direct the State Government to forthwith examine the matter at its own level and issues necessary guidelines clarifying the law relating to repeal, as settled by the Apex Court, in the manner, as indicated above.” (Emphasis added) 33. The judgement of this Court in Lalla (Supra) is a judgement in-rem. No circular or executive instructions issued by the Government as directed by this Court in Lalla (Supra) has been brought to our notice either by the Standing Counsel or the counsel for A.D.A. There was an obligation on the part of State Government to extend the benefit of judgement in Lalla (Supra) to all similarly placed persons which evidently includes the petitioners. 34. This Court in Balbir Singh (Supra) held that after the Repealing Act, the State Government cannot take possession of the vacant land. Paragraph No. 14 of the aforesaid judgement is reproduced below : “14. In case, possession has been taken, since the repeal of the Principal Act does not effect such cases, any writ petition pending challenging the order passed in proceedings under the 1976 Act, will have to be decided on merits. Paragraph No. 14 of the aforesaid judgement is reproduced below : “14. In case, possession has been taken, since the repeal of the Principal Act does not effect such cases, any writ petition pending challenging the order passed in proceedings under the 1976 Act, will have to be decided on merits. However, the cases where the State Government or duly authorised person on its behalf competent authority has not taken possession since the proceedings under the Act of 1976 shall abate, any petition pending before this Court challenging any order arising out of said proceedings shall be rendered infructuous. The simple reason for this is that the State Government in view of Repealing Act can neither take proceedings for vesting of the land, nor take possession and, thus, it become unnecessary to decide petitions on merits in such an eventuality. (Emphasis added) 35. In support of their argument learned counsels for the respondents have referred to the judgement of Hon’ble Supreme Court in Sulochana Chandrakant Galande v. Pune Municipal Transport and others, (2010) 8 SCC 467 as well as judgement of this Court in Shiv Ram Singh v. State of U.P. and others, 2015(7) ADJ 630 (DB). 36. In the case of Sulochana Chandrakant Galande (Supra) possession was taken by the appropriate Government before the Repeal Act and, therefore, the Hon’ble Supreme Court held that the land holders were not entitled to the benefit of Repeal Act. In paragraph Nos. 36 and 37 of the aforementioned judgement, the Hon’ble Supreme Court recorded the fact that possession of land was taken in 1979 by State of Maharashtra and it was handed over to PMT for construction of residential quarters for the staff. Subsequently, in paragraph No. 38 the Court has again held that after the Repeal Act, proceedings pending in any Court had abated, if the land holders were in possession of the land on the date of the commencement of Act, 1999. Paragraph No. 38 of the aforementioned judgement is reproduced below : “38. Therefore, the law, as exists today, is that the land in dispute could be subjected to the provisions of the Act, 1976, with effect from 17.5.1976, i.e. the date on which the suit land came within the limits of the Municipal Corporation. Paragraph No. 38 of the aforementioned judgement is reproduced below : “38. Therefore, the law, as exists today, is that the land in dispute could be subjected to the provisions of the Act, 1976, with effect from 17.5.1976, i.e. the date on which the suit land came within the limits of the Municipal Corporation. The Act stood repealed in 1999, but the proceedings pending in any Court would stand abated provided the tenure-holder was in possession of the land on the date of the commencement of the Act 1999. (Emphasis added) 37. Similarly, in the judgement of this Court in Shiv Ram Singh v. State of U.P. and others, 2015(7) ADJ 630 (DB), the issue was whether possession was taken over by the State Government prior to 18th March, 1999. In this regard the Court has recorded the relevant fact in paragraph No. 7 of its judgement, which is reproduced as below : “7. The basic issue which falls for consideration in these proceedings is whether possession of land declared surplus had been taken over from the petitioner prior to 18th March, 1999.” 38. In the aforesaid judgement, the Court recorded a finding that possession of the disputed land was taken prior to 1999 and, therefore, the landholder in the said case was not entitled to the benefit of Repeal Act. The said finding was recorded on the basis of possession memo duly executed by Nagar Nigam and Kanoongo and on the basis that the fact of taking over possession by the State Government was also recorded in the Urban Land Ceiling Register and in the prescribed format. In the aforesaid case, this Court also held that the grievance of the petitioner as raised in the writ petition that notice under Section 10(5) of the Act, 1976 was not issued to him was barred by laches. The issue regarding delay in filing the writ petition was decided against the petitioner in the context that petitioner had been dispossessed from the land in dispute before 18.3.1999 and the representation of the petitioner had been rejected two years before the filing of the writ petition. Further, in the aforesaid case, as a result of delay on the part of the petitioner, construction of Sewage Treatment Plant on the disputed land had started and a large amount of public expenditure had been incurred. Further, in the aforesaid case, as a result of delay on the part of the petitioner, construction of Sewage Treatment Plant on the disputed land had started and a large amount of public expenditure had been incurred. In this context, paragraph No. 11 of the report is reproduced below : “11. We must also advert to another aspect of the matter particularly having regard to the recent decision of the Supreme Court in Bhaskar Jyoti Sarma (supra). The petitioner moved the first writ petition in 2002 nearly three years after the Repeal Act had come into force. After the earlier writ petition was disposed of by directing the District Magistrate to pass an order on the representation of the petitioner, an order was passed by the District Magistrate on 10 May 2007. The petitioner thereafter waited for a period of over two years until the present writ petition was filed in July 2009. If the petitioner had been dispossessed of the land without due notice under Section 10(5), such a grievance could have been raised at the relevant time. As a matter of fact, it has been the case of the State all along that a notice under Section 10(5) was, in fact, issued in the present case which would be borne out from the original file which has been produced before the Court. The issue is whether such a grievance could be made long after, before the Court. The petitioner had waited for nearly three years after the Repeal Act came into force to file the first writ petition and thereafter for a period of over two years after the disposal of the representation despite the finding of the District Magistrate that possession was taken over on 25 June 1993. In our view, such a belated challenge should not, in any event, be entertained. However, we would hasten to add that this is quite apart from the fact that we have, independent of this finding, held that possession was in fact taken over prior to 18 March 1999 consequent upon which the petitioner would not be entitled to the benefit of the Repeal Act. However, we would hasten to add that this is quite apart from the fact that we have, independent of this finding, held that possession was in fact taken over prior to 18 March 1999 consequent upon which the petitioner would not be entitled to the benefit of the Repeal Act. As a result of the delay on the part of the petitioner, the construction of the STP particularly on the area of land which is not covered by the interim order passed in these proceedings has proceeded apace and the work has been substantially completed and a large amount of public expenditure has been incurred in the meantime. This is an aspect which cannot be ignored by the Court in the ultimate conclusion. (Emphasis added) Thus, the judgements in Sulochana Chandrakant Galande (Supra) and Shiv Ram Singh (Supra) are not applicable in the present cases and not helpful in deciding the present cases inasmuch as in the aforementioned cases possession was taken over by the State Government prior to 18.3.1999 and parallel third party rights had come in existence. 39. As held previously, while considering the entitlement of landholders to the benefit of Repeal Act, 1999 the only determinative factor is whether the State Government has taken actual physical possession of the excess vacant land before 18.3.1999 or not. The question whether landholders have acquiesced in violation of their rights and had waived them arises only after the State Government takes actual physical possession of vacant land. No attempt was made by the State Government to take actual physical possession of the disputed land. It is admitted that no proceedings to take possession from the landholders were initiated by the State Government except that a notice under Section 10(5) of the Act, 1976 was issued and no Dakhalnama was executed or is on record of the case. Further, there is no order by any competent authority denying the landholders the benefit of Repeal Act. Thus, there is no acquiescence or waiver on the part of petitioners relating to violation of their rights. In the present case the landholders are in actual physical possession of the land. As held earlier in the judgment, allotment of disputed land to A.D.A. or mutation in favour of the State Government in Revenue Records have no legal significance. Thus, there is no acquiescence or waiver on the part of petitioners relating to violation of their rights. In the present case the landholders are in actual physical possession of the land. As held earlier in the judgment, allotment of disputed land to A.D.A. or mutation in favour of the State Government in Revenue Records have no legal significance. It has been admitted at the Bar by the counsel for the respondents that no construction or development work have yet started on the disputed land. Thus, parallel rights in favour of any third party have not yet been created on the disputed lands. In view of the judgement of this Court in Lalla (Supra), the State Government was obliged to itself extend the benefit of Repeal Act, 1999 to the landholders/petitioners. Denying the benefit of Repeal Act to the land owners would amount to permitting the State Government to take actual physical possession of the land, a power which the Government does not have after the enactment of Repeal Act and any attempt by the State Government or A.D.A. to take possession of the disputed land would be illegal. As stated earlier, power under Article 226 of the Constitution of India is exercised to effectuate the Rule of Law and not to abrogate it. In the circumstances, the plea of the respondents that the petitions are barred by laches is not acceptable and is rejected. 40. Consequently, all proceedings under the Act, 1976 relating to the petitioners have abated and respondents are not entitled to interfere in the peaceful possession of the petitioners over the disputed land. 41. In the circumstances and for the reasons given above proceedings of Case Nos. K-1762/4880/1976 (State v. Hafeej Ulla) challenged in Writ Petition No. 50519 of 2014, K-4199/1976 (State v. Ram Khelawan) challenged in Writ Petition No. 50524 of 2014, C-131/C-527/1976 (State v. Bachchan) challenged in Writ Petition No. 63657 of 2014 and C-494/1976 (State v. Ram Bahadur) challenged in Writ Petition No. 63655 of 2014 are declared to have abated and respondent Nos. 1 to 3 are directed not to interfere in the peaceful possession of the petitioners over the disputed land i.e. the land declared as surplus under the Act, 1976. Further, respondent No. 2 is also directed to correct the relevant revenue records by recording the name of petitioners against the disputed plots. 42. The writ petitions are accordingly allowed.