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Allahabad High Court · body

2019 DIGILAW 1984 (ALL)

Ram Singh v. State of U. P.

2019-08-20

P.K.S.BAGHEL, PANKAJ BHATIA

body2019
ORDER : Pankaj Bhatia, J. 1. Heard Shri R.N. Tripathi, learned counsel for the petitioners and learned Standing Counsel for the State. 2. The petitioners in the present petition claim to be the owners of Bhumidhari land situate at village Chaka Tehsil Karchhana District Allahabad and claim to be in possession of the property in question since for the last about 65 years. 3. The present petition seeks a writ of mandamus declaring the proceedings initiated against the petitioners under the Urban Land (Ceiling and Regulation) Act No. 36 of 1976 (herein after referred to as 'the Act') as abated in view of the Repealing Act of 1999. 4. It is alleged that a notice under Section 8 (3) of the Act was served upon the petitioners and the father of the petitioners have filed objections against the said notice on 18.9.1979, however, by means of an ex-parte order the land of the petitioners were declared as surplus by the competent authority on 30.11.1979 (Annexure-2 to the writ petition). It is claimed that no further steps were taken in pursuance to the order dated 30.11.1979 and the petitioners continued to be in actual physical possession of the property in question. 5. The petitioners claimed that the petitioners are still in possession over the said land till date and the physical possession of the said land had not been taken by the respondents till date and up till now the petitioners are cultivating the aforesaid land as the same is an agricultural land. 6. It is stated that the Uttar Pradesh Urban Land (Ceiling and Regulation) Act, 1976 enacted by the Parliament in exercise of its legislative power under Article 252 (1) of the Constitution of India and came into force in U.P. by adopting aforesaid act under Article 252(2) of the Constitution of India on 17.6.1976. Thereafter Parliament passed a Repeal Act No. 15 of 1999 on 22.3.1999 and same is adopted by the state of U.P. by Repeal Act no. 15 of 1999 which came into force in Uttar Pradesh by Repeal Act no. 15 of 1999 which came into force in Uttar Pradesh on 31.3.1999. 7. It is also alleged in the writ petition that no compensation was aver paid or accepted by the petitioners under the Ceiling Act. 15 of 1999 which came into force in Uttar Pradesh by Repeal Act no. 15 of 1999 which came into force in Uttar Pradesh on 31.3.1999. 7. It is also alleged in the writ petition that no compensation was aver paid or accepted by the petitioners under the Ceiling Act. It is also stated that the name of the petitioners' father was entered in the revenue record against Gata Nos. 165, 533, 561 & 196 and after the death of the father of the petitioners, the names of the petitioners were duly recorded vide order dated 14.6.2002. It is also brought on record that the petitioners continued to be in physical possession of the property in question and that the petitioners had deposited the Tube well charges regarding the land in question for cultivation for the years 2008 and 2009. In view of the factual averments made as well as relying upon the judgment of the Supreme Court in the case of State of Uttar Pradesh Vs. Hari Ram (2013) 4 Supreme Court Cases 280, the petitioners claim that they are entitled to reliefs claimed in the writ petition. 8. In the counter affidavit filed by the State Government, no documents have been annexed to demonstrate as to how the possession was taken, the only defence taken is that the name of the State Government has been mutated in the revenue records and that the writ petition filed after several years, is liable to be dismissed. 9. On 13.3.2019, this Court had passed the following order:- "Learned Standing Counsel has produced the original record. We find that the petitioners have annexed a notice dated 5.2.1986 under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 issued to the tenure holder/petitioner which shows that two officers have taken possession on behalf of the State and the Prescribed Authority. There is no explanation of the tenure holder to indicate that he has given possession to the aforesaid authority. In the original record same document is on the record hence we accept annexure-2 as a correct document. We have carefully perused the original record and we find that no document pertains to the proceeding under Section 10(6) of the Act, 1976 has been shown is in the original record. After perusal, the original record is returned to Sri Mohan Srivastava, learned Standing Counsel. We have carefully perused the original record and we find that no document pertains to the proceeding under Section 10(6) of the Act, 1976 has been shown is in the original record. After perusal, the original record is returned to Sri Mohan Srivastava, learned Standing Counsel. Learned counsel for the petitioners submits that the petitioners are still in possession and he has drawn our attention to the averments made in paragraph nos. 4, 7 & 8 which have not been specifically denied in the counter affidavit. Learned counsel for the petitioners has placed reliance on a judgment of the Supreme Court in the case of State of U.P. v. Hari Ram, (2013) 4 SCC 280 and a judgment of a Division Bench of this Court in the case of Nanaku Lal Yadav v. State of U.P. and others, Writ-C No. 60193 of 2015. We have heard Sri R.N. Tripathi, learned counsel for the petitioners and learned standing counsel at length. Judgment is reserved." 10. Allahabad Development Authority has also filed a counter affidavit stating that the possession was transferred to Allahabad Development Authority vide a Government Order dated 11.12.1996 and has relied upon the judgment of the Supreme Court in the case of State of Assam Vs. Bhaskar Jyoti Sarma and others (2015) 5 Supreme Court Cases 321 to contend that the writ petition is liable to be dismissed on the ground that the possession has already been transferred by a Government Order, the petition is highly belated and in view of the judgment of the Supreme Court in the case of State of Assam Vs. Bhaskar Jyoti Sarma and others (supra) the writ petition is liable to be dismissed. The standing counsel has also relied upon the Division Bench judgment of this Court in the case of Shiv Ram Singh Vs. State of U.P. and others { 2015(7) ADJ 630 (DB)}. 11. The counsel for the petitioners has relied upon the judgments in the case of State of Uttar Pradesh Vs. Hari Ram, (2013) 4 Supreme Court Cases 280, State of Uttar Pradesh and another Vs. Nek Singh, 2010 LawSuit (All) 3581, Ram Chandra Pandey Vs. State of U.P. through Secretary, Avas, Lucknow, 2010 (82) ALR 136, Ram Singh and others Vs. State of U.P. and others, 2013 (120) RD 389 , Lalji Vs. Hari Ram, (2013) 4 Supreme Court Cases 280, State of Uttar Pradesh and another Vs. Nek Singh, 2010 LawSuit (All) 3581, Ram Chandra Pandey Vs. State of U.P. through Secretary, Avas, Lucknow, 2010 (82) ALR 136, Ram Singh and others Vs. State of U.P. and others, 2013 (120) RD 389 , Lalji Vs. State of U.P. and others, 2018 LawSuit (All) 1276, the judgment of the Hon'ble Supreme Court in the case rendered in Special Leave to Appeal (C) No. 38922 of 2013, State of Uttar Pradesh and another Vs. Vinod Kumar Tripathi & others and the judgment passed in Writ C No. 60193 of 2015 Nanku Lal Yadav Vs. State of U.P. and others, decided on 8.3.2018. 12. The factual aspects of the present writ petition are clear to the effect that no possession was taken by the Collector under Section 10 (5) of the Act, the possession memo shown to us does not even bear the signatures of the person giving the possession, there is no factual dispute that the petitioners are still in actual physical possession of the property in question as well as no compensation was either paid or received by the petitioner in the present case. It is also not disputed that no recourse was taken to Section 10 (6) of the Act. This Court extensively considered a similar matter in Writ C No. 12696 of 2009 Mohammad Suaif and another Vs. State of U.P. and others, decided on 7.5.2019 and had duly considered the judgments of the Supreme Court in the case of State of U.P. Vs. Hari Ram (Supra) followed by this High Court in series of judgments as well as the judgment of the Supreme Court rendered in the case of State of Assam Vs. Bhaskar Jyoti Sarma and others (supra) this Court after considering the entire judgments framed the following questions:- (i) whether the possession taken by the State Government can be termed as a valid possession in accordance with law provided under the Act No. 33 of 1976 read with the Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983? (ii) whether the possession not taken inconsonance with the provisions of the Act and Directions can be termed to be a legal possession? (ii) whether the possession not taken inconsonance with the provisions of the Act and Directions can be termed to be a legal possession? (iii) whether the subsequent transfer of the land to Allahabad Development Authority can be a sole ground for denying the reliefs to the petitioners? (iv) what would be the effect of the Repeal Act, in the event the possession is held not to be taken in accordance with the statutory provisions? (v) whether the judgment of the Supreme Court in the case of State of Assam Vs. Bhaskar Jyoti Sarma and others, (2015) 5 Supreme Court Cases 321 can be applied to the cases arising in the State of Uttar Pradesh? 13. This Court after duly considering the judgments and the provisions of law recorded that in the State of Uttar Pradesh the position of law was as under:- The Urban (Ceiling and Regulation) Act was promulgated as Act No. 33 of 1976 and it came into force on 17.2.1976. The object of the Act was to provide for imposition of ceiling of vacant land in urban conglomeration and for acquisition of such lands which were held in excess of the ceiling limits. In terms of Act No. 33 of 1976 by virtue of powers conferred under Section 35 of the said Act. The State of Uttar Pradesh issued specific directions prescribing the manner for taking possession known as the Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983. 14. The Act No. 33 of 1976 was repealed by Section 2 of the Repeal Act, 1999 and the said Repeal Act was adopted in the State of Uttar Pradesh on 18.3.1999. By virtue of Section 3 of the Repeal Act, savings clause was provided, Section 3 of the Repeal Act, 1999 is being quoted herein below:- "Section 3 in The Urban Land (Ceiling and Regulation) Repeal Act, 1999 3. By virtue of Section 3 of the Repeal Act, savings clause was provided, Section 3 of the Repeal Act, 1999 is being quoted herein below:- "Section 3 in The Urban Land (Ceiling and Regulation) Repeal Act, 1999 3. Saving.-- (1) The repeal of the principal Act shall not affect-- (a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorized by the State Government in this behalf or by the competent authority; (b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary; (c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20. (2) 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." 15. The relevant directions issued under Section 35 of the Act No. 33 of 1976 known as 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 Act, 1976) are quoted herein below:- 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 Act, 1976): "In exercise of the powers under Section 35 of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No. 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. 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 From No. ULC-1 for each case regarding which notification under sub-section (3) of Section 10 of the Act is published in the Gazette. 4. (2) an order in Form No. ULC-II will be sent to each land holder 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-1. (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 ULC-III and also in Column 9 of the 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. Form No. ULC-1 Register of Notice u/s. 10-(3) and 10(5) 1 2 3 4 5 6 7 8 Serial No. of Register of Receipt Serial No of Register of Taking possession Case number Date of Notification u/s. 10 (3) Land to be acquired Date of taking over possession Remarks Signature of competent Authority Form No. ULC-II Notice order u/s. 10(5) (See clause (2) of Direction (3) In the Court of Competent Authority U.L.C. …………… No. ………………… Date ……………… Sri/Smt………………………….T/o …………………………………. In exercise of the powers vested un/s 10(5) of the Urban Land Ceiling and Regulation Act, 1976 (Act No. 33 of 1976, you are hereby informed that vide Notification No. ……. dated ….. under section 10(1) published in Uttar Pradesh Gazette dated… following land has vested absolutely in the State free from all encumbrances as a consequence Notification u/s. 10(3) published in Uttar Pradesh Gazette dated ……. Notification No. ……… dated …. With effect from ………. dated ….. under section 10(1) published in Uttar Pradesh Gazette dated… following land has vested absolutely in the State free from all encumbrances as a consequence Notification u/s. 10(3) published in Uttar Pradesh Gazette dated ……. Notification No. ……… dated …. With effect from ………. you are hereby ordered to surrender or deliver the possession of the land to the Collector of the District Authorised in this behalf under Notification No. 324/II-27-U.C.77 dated February 9, 1977, published in the gazette, dated March 12, 1977, within thirty days from the date of receipt of this order otherwise action under sub-section (6) of Section 10 of the Act will follow. Description of Vacant Land Location Khasra number identification Area Remarks 1 2 3 4 Competent Authority …………………. …………………. Dated……………… Copy forwarded to the Collector ………… with the request that action for immediate taking over of the possession of the above detailed surplus land and its proper maintenance may, kindly be taken an intimation be given to the undersigned along with copy of certificate to verify. Competent Authority ……………. ………….." 16. The State Government issued a Government Order No. 228@vkB&6&15&124 ;wlh 13 dated 29th September, 2015 accepting the judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh Vs. Hari Ram (Supra) and necessary directions were issued to take steps for compliance and decision in terms of the directions in the case of State of Uttar Pradesh Vs. Hari Ram (Supra). Hari Ram (Supra) and necessary directions were issued to take steps for compliance and decision in terms of the directions in the case of State of Uttar Pradesh Vs. Hari Ram (Supra). Copy of the said Government Order dated 29.9.2015 is quoted herein below:- la[;k & 2228@vkB&6&15&124 ;wlh@13 Ás"kd] iu/kkjh ;kno lfpo] mRrj Áns'k 'kkluA lsok esa] ftykf/kdkjh] xksj[kiqj] okjk.klh] bykgkckn] y[kuÅ] dkuiqj vkxjk] esjB] eqjknkckn] vyhx<+] cjsyh] lgkjuiqjA vkokl ,oa 'kgjh fu;kstu vuqHkkx&6 y[kuÅ fnukad 29 flrEcj 2015 fo"k; % uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e] 1999 rrØe eas fuxZr 'kklukns'k rFkk ek0 mPpre U;k;ky; ds fu.kZ; fnukad 11-03-2013 ds lEcU/k easaA egksn;] mi;qØr fo"k; ij eq>s ;g dgus dk funsZ'k gqvk gS fd Hkkjr ljdkj ds vf/kfu;e la[;k&15@1999 fnukad 18-03-1999 }kjk uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ vf/kfu;e 1976 dks fujflr djrs gq, uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e 1999 Ák[;kfir fd;k x;k ftlds Øe esa 'kklukns'k la[;k& 502@9&u0 Hkw0&99&21;w0 lh0@99] fnaukad 31-03-1999 }kjk mDr fujlu vf/kfu;e dks mRrj Áns'k jkT; esa vaxhd`r fd;k x;kA fujlu vf/kfu;e 1999 dh /kkjk&3 es ;g Ákfo/kku gS fd ewy vf/kfu;e dk fujlu fuEufyf[kr dks ÁHkkfor ugha djsxk& ¼1½ ¼d½ /kkjk&10 dh mi/kkjk& ¼3½ ds v/khu ,slh fjDr Hkwfe dk fufgr gksuk] ftldk dCtk jkT; ljdkj ;k jkT; ljdkj }kjk bl fufeRr lE;d :i ls vf/kd`rd fdlh O;fDr ;k l{ke Ákf/kdkjh us ys fy;k gSA ¼[k½ /kkjk& 20 dh mi/kkjk& ¼1½ ds v/khu NwV nsus laca/kh fdlh vkns'k ;k mlds v/khu dh x;h fdlh dk;Zokgh dh fdlh U;k;ky; ds fdlh fu.kZ; esa mlds foL) fdlh ckr ds gksrs gq, Hkh fof/kekU;rk% ¼x½ /kkjk& 20 dh mi/kkjk& ¼1½ ds v/khu Ánku dh x;h NwV dh 'krZ ds :i eas jkT; ljdkj dks fd;k x;k dksbZ lank;% ¼2½ tgka& ¼d½ ewy vf/kfu;e dh /kkjk&10 dh mi/kkjk ¼3½ ds v/khu fdlh Hkwfe dks jkT; ljdkj es fufgr gksuk ekuh x;h gS fdUrq ftldk dCtk jkT; ljdkj ;k jkT; ljdkj }kjk bl fufeRr lE;d :i ls Ákf/kd`r fdlh O;fDr ;k l{ke Ákf/kdkjh }kjk ugha fy;k x;k % vkSj ¼x½ ,slh fdlh Hkwfe ds ckcr ftlds fy, jkT; ljdkj }kjk fdlh jde dk lank; dj fn;k x;k gS rc rd ÁR;kofrZr ugh dh tk; vkSj tc rd fd jkT; ljdkj dks lank; dh x;h jde dk ;fn dksbZ gks] Áfrnk; ugha dj fn;k tkrkA mDr ds Øe es 'kklukns'k la[;k&777@9u0Hkw0&135 ;w0 lh0@99 fnukad 09- 02-2000] 'kklukns'k la[;k &1623@9& u0Hkw0&2000 fnukad 09-08-2000 ,oa 'kklukns'k la[;k& 190@9&vk&6&2001 fnukad 24-01-2001 fuxZr fd;s x;s ftles eq[; :i ls ;g O;oLFkk dh xbZ fd ewy vf/kfu;e /kkjk &8 ¼4½ ds vUrxZr tks Hkwfe fjDr ?kksf"kr dh xbZ Fkh vkSj /kkjk&10 ¼3½ ds vUrxZr jkT; es fufgr gks pqdh Fkh ,oa /kkjk&10 ¼5½ dh dk;Zokgh dk vkns'k gks pqdk Fkk ijUrq bl Hkwfe ij jkT; ljdkj dk dCtk ÁkIr ugha gks ldk Fkk] ,slh Hkwfe ds lEcU/k esa ewy Hkw/kkjd dks vnk dh xbZ /kujkf'k Hkw&/kkjd }kjk okil djus ij Hkwfe ewy Hkw&/kkjd dks ÁR;kofrZr dh tk ldrh gS fdUrq vnk dh xbZ /kujkf'k Hkw&/kkjd }kjk okil u djus dh n'kk esa Hkwfe ij dCtk fd;s tkus ds lEcU/k es fof/k vuqlkj vfxze dk;Zokgh vey es yk;h tk;A ;g Hkh O;oLFkk dh xbZ fd ftl Hkwfe ds lEcU/k esa /kkjk&10 ¼5½ dh dk;Zokgh ds mijkUr /kkjk&10 ¼6½ dh dk;Zokgh iwoZ gks pqdh gS vkSj Hkwfe ij jkT; ljdkj }kjk dCtk fy;k tk pqdk gS og ljIyl Hkwfe vfUre :i ls jkT; ljdkj esa fufgr ekuh tk;sxhA 3- uxj Hkwfe lhekjksi.k& xksj[kiqj] okjk.klh] bykgkckn] y[kuÅ] dkuiqj] vkxjk] esjB] eqjknkckn] vyhx<+] cjsyh] lgkjuiqj esa yfEcr vcZu lhfyax Ádj.kksa dk leqfpr :i ls fuLrkj.k us gksus dh fLFkfr es Hkw&/kkjdksa@okfn;ksa }kjk ek0 mPp U;k;ky; esa vf/kd la[;k esa fjV ;kfpdk;sa ;ksftr dh tk jgh gSA uxj cLrh dk;kZy;ksa }kjk fjV ;kfpdkvksa es foHkkxh; i{k le;kUrxZr lk{;ksa lfgr Ácyrk ls ÁLrqr u fd;s tkus ds dkj.k ek0 U;k;ky; }kjk ikfjr vkns'kksa ds Øe esa 'kklu dks vleatliw.kZ fLFkfr dk lkeuk djuk iM+ jgk gSA 4- vcZu lhfyax ds vU; Ádj.k es jkT; ljdkj }kjk ek0 mPppe U;k;ky; ubZ fnYyh es fo'ks"k vuqefr ;kfpdk la[;k&12960@2008 mRrj Áns'k jkT; cuke gjhjke ;ksftr dh x;hA dkykUrj es vU; tuinksa ds vcZu lhfyax ls lacf/kr Ádj.kksa es ;ksftr fo'ks"k vuqefr ;kfpdk;sa mDr fo'ks"k vuqefr ;kfpdk ls Dyc dh x;hA mDr fo'ks"k vuqefr ;kfpdk la[;k&12960@2008 rFkk mlls Dyc vU; fo'ks"k vuqefr ;kfpdkvksa esa ikfjr ek0 mPpre U;k;ky; ds fu.kZ; fnukad 11-03-2013 es vcZu lhfyax ls lacf/kr Ádj.kksa es ekxZn'kZd fl)kUr Áfrikfnr fd;s x;s gSA fu.kZ; fnukad 11-03-2013 dk egRoiw.kZ ,oa fØ;kRed va'k fuEuor gS%& ÁLrj&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 At. The Stage 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 3 of the Repeal Act. ÁLrj&40 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 3 of the Repeal Act. However, there will be no ore as to cost. 5- uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e] 1999 esa fofgr Ákfo/kku rFkk rRØe es fuxZr 'kklukns'k fnukad 09-02-2000] 'kklukns'k fnukad 09-08-2000 ,oa 'kklukns'k fnukad 24-01-2001 Lor% Li"V gSA fo'ks"k vuqefr ;kfpdk la[;k&12960@2008 mRrj Áns'k jkT; cuke gjhjke rFkk mlls Dyc vU; fo'ks"k vuqefr ;kfpdkvks es ikfjr ek0 mPpre U;k;ky; ds fu.kZ; fnukad 11-03-2013 esa mfYyf[kr fl)kUr@vkns'k Hkh Lor% Li"V gSA 6- d`i;k uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fujlu vf/kfu;e] 1999 rFkk mDr 'kklukns'k fnukad 09-02-2000] 'kkluns'k fnukad 09-08-2000 ,oa 'kklukns'k fnukad 24-01-2001 es fofgr O;oLFkk] fo'ks"k vuqefr ;kfpdk la[;k&12960@2008 mRrj Áns'k jkT; cuke gjhjke es ikfjr ek0 mPpre U;k;ky; ds fu.kZ; fnukad 11-03-2013 esa mfYyf[kr fl)kUrksa@vkns'kksa ds vkyksd esa yfEcr Ádj.kksa es Legal ingredients ns[krs gq, vko';d dk;Zokgh dh tk;A Hkonh; g0 viBuh; ¼iu/kkjh ;kno½ lfpo la[;k ,oa fnukad rnSoA Áfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq Ásf"krA 1- funs'kd uxj Hkwfe lhekjksi.k] m0 Á0 tokgj Hkou& y[kuÅ 2- l{ke Ákf/kdkjh uxj Hkwfe lhekjksi.k xksj[kiqj] okjk.klh] bykgkckn] y[kuÅ] dkuiqj] vkxjk] esjB] eqjknkckn] vyhx<+] cjsyh] lgkjuiqjA 3- eq[; LFkk;h vf/koDrk ek0 mPp U;k;ky;] bykgkckn 4- xkMZ QkbZyA vkKk ls ¼dYyw Álkn f}osnh½ mi lfpoA 17. This Court also discussed the judgment of the Supreme Court in the case of State of U.P. Vs. Hari Ram (Supra) followed by the other judgments as well as judgment in case of State of Assam Vs. This Court also discussed the judgment of the Supreme Court in the case of State of U.P. Vs. Hari Ram (Supra) followed by the other judgments as well as judgment in case of State of Assam Vs. Bhaskar Jyoti Sarma (supra) and answered the questions as under:- (i) The possession taken by the State Government cannot be termed as a valid possession in accordance with law provided under the Act No. 33 of 1976 read with the Uttar Pradesh Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983. (ii) The possession which is not taken in consonance with the provisions of the Act and Directions cannot be termed to be a legal possession in accordance with law. (iii) Subsequent transfer of land to Allahabad Development Authority cannot be a ground for denying the reliefs in the case where the possession is held to be taken in derogation of the Act No. 33 of 1976 read with the Directions, 1983. (iv) It is held that the Repeal Act will apply with full force and in the event the possession is not taken in accordance with the statutory provisions. 18. The facts of the judgment in the case of Mohammad Suaif and another Vs. State of U.P. & others (Supra) decided on 7.5.2019 in Writ C No. 12696 of 2009 squarely apply to the facts of the present case, as in the present case the possession has not been voluntarily given by the petitioners, the possession memo does not bear the signatures, the possession has not been taken by the Collector or even anybody authorized by him. The actual physical possession continues to be with the petitioners and as such we have no hesitation in holding that the petitioners are entitled to the benefits of the Repeal Act and the proceedings initiated against the petitioners are liable to be dropped and declared as abated. 19. This Court in the case of Nanku Lal Yadav Vs. State of U.P. and others (Supra) decided on 8.3.2018, in Writ C No. 60193 of 2015 in similar facts and circumstances, considered the entire gamut of laws allowed the writ petition. 20. We have also gone through the Division Bench judgment of this Court in the case of Shiv Ram Singh Vs. State of U.P. and others (Supra) decided on 8.3.2018, in Writ C No. 60193 of 2015 in similar facts and circumstances, considered the entire gamut of laws allowed the writ petition. 20. We have also gone through the Division Bench judgment of this Court in the case of Shiv Ram Singh Vs. State of U.P. and others (supra) wherein this Court dismissed the writ petition claiming the benefit of Section 3 of the Repeal Act. In the said case the Division Bench had perused the record produced by the Standing Counsel and recorded as under:- "In the present case, the learned Chief Standing Counsel has produced the original file for the perusal of the Court. The material before the Court indicates that the Directions of 1983 were duly observed. Direction 3(2) envisages that an order in Form ULC-II has to be sent to each land holder as prescribed under Section 10(5) and the date of issue and service of the order is to be entered in Column 8 of Form ULC-I. This procedure has been complied and we may only note that a copy of the original ULC-II register has been produced for the perusal of the Court. Similarly, direction 3(3) contemplates that 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, entries will be made in a register in Form ULC-III. The original Form ULC-III has similarly been produced before the Court. Entries have been made in compliance with direction 3 both in ULC-II and ULC-III registers. In the present case, it is also clear from the record that on 14 February 1992, a communication was addressed by the Competent Authority to the Tehsildar drawing attention to an earlier letter dated 25 February 1987 and requesting that possession of the land be taken over. A copy of the letter dated 25 February 1987 forms part of the original record which was produced by the learned Chief Standing Counsel. On 25 June 1993, possession of the land was taken over. The possession receipt has been duly executed by the Naib Tehsildar and by the Kanoongo. In this view of the matter, we are unable to accept the contention of the petitioner that possession of the land was not taken over prior to the date of the Repeal Act." 21. On 25 June 1993, possession of the land was taken over. The possession receipt has been duly executed by the Naib Tehsildar and by the Kanoongo. In this view of the matter, we are unable to accept the contention of the petitioner that possession of the land was not taken over prior to the date of the Repeal Act." 21. The question whether the Collector is empowered to delegate the act of taking possession based on the well settled principles of law that "Delegatees non protest delegare" was neither raised nor considered by this Court in the case of Shiv Ram Singh Vs. State of U.P. and others (supra). In the said decision even the question of difference of procedure for prescribing the taking over of the possession as provided in the State of U.P. was distinct with regards to the provisions in the State of Assam was neither raised nor considered and the decision in the case of Shiv Ram Singh Vs. State of U.P. and others (supra) had also recorded that the possession in the said case was taken over prior to 18.3.1999 consequent upon which the petitioners would not be entitled to the benefit of the Repeal Act, the Court was impressed with the fact that the sewerage treatment plant was being constructed and substantial part of it had already been constructed which itself dis entitled the petitioners to claim relief as they were not serious to approach the Court within the time. The said judgment, we say respectfully cannot be applied to the facts of the present case for the reasons that the question of manner of taking possession in the State of U.P. and State of Assam are distinct and separate which question was neither adjudicated nor decided by the Court. 22. The question of delegatee not empowered to further sub-delegate was neither raised nor considered by the Court as also in the present case there is no such averment in the pleadings of the State Government to demonstrate that some project has come-up on the land in question, which the petitioners were aware and failed to agitate within a reasonable time, these three factors being different in the present case from that of the case of Shiv Ram Singh Vs. State of U.P. and others (supra), we respectfully hold that the findings recorded in the said case are clearly distinguishable. State of U.P. and others (supra), we respectfully hold that the findings recorded in the said case are clearly distinguishable. All these aspects which were not considered in the case of Shiv Ram Singh Vs. State of U.P. and others (supra) were duly raised and considered by this Court in the case of Mohammad Suaif and another Vs. State of U.P. (Supra). 23. Consequently, relying upon the judgment in the case of Mohammad Suaif and another Vs. State of U.P. (Supra) and judgment in case of Nanku Lal Yadav Vs. State of U.P. and 3 others (Supra) and considering the facts of the case, the writ petition is allowed declaring the petitioners to be owners with the direction to the State Government to correct the revenue records accordingly.