Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 984 (ALL)

Shahzad v. State of U. P.

2019-04-17

P.K.S.BAGHEL, ROHIT RANJAN AGARWAL

body2019
JUDGMENT : 1. Petitioners have preferred this writ petition under Article 226 of the Constitution of India for issuance of writ of certiorari to quash the order dated 5.5.2014 passed by the Collector, Saharanpur whereby the petitioners' representation has been rejected holding that in revenue record, the name of the Government has been mutated and his land has been legally declared surplus and possession has been taken under the provisions of Urban Land (Ceiling & Regulation) Act, 1976 (for short, the 'Act, 1976'). 2. A brief reference to the factual aspects would suffice. 3. The petitioners claim that they are the owners of the Khasra Nos. 431, 33, 312, 490, 504, 505, 507/1 and 421/1 situated at Village Dabki Junardar, Tehsil and District-Saharanpur. The proceedings were initiated under the provisions of the Act, 1976 to declare their surplus land. The competent authority vide order dated 13.12.1978 declared petitioners' land admeasuring 11293.607 sq.mt, surplus. It is stated that said order was passed ex parte and it was not implemented as he is still in possession. The petitioners' father came to know about said order on 27.2.2002 when he found that name of State has been recorded in the revenue papers (khatauni). Against the order dated 13.12.1978, he filed an appeal. In the meantime Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short, the 'Act 15 of 1999') came in to force and the Act 33 of 1976 Act was repealed. Under Section 4 of the Act, 15 of 1999, all legal proceedings were abated subject to Section 3 of the Act. Petitioners' claim that since they are continued to be in possession hence, in this case, proceedings stood abated in terms of Section 3(2)(a) of the Act. It is stated that they have not received any compensation. It is also stated that when respondents started interfering in possession of the petitioners, they preferred a Writ Petition being Civil Misc. Writ Petition No. 30434 of 2002. During the pendency of the said writ petition, father of the petitioners unfortunately died on 13.8.2003. The aforesaid writ petition was finally disposed of on 23.3.2012 leaving it open to the petitioners to make a representation before the Collector, Saharanpur for redressal of their 'grievance. A copy of the judgment of this Court is on record as Annexure 3 to the writ petition. 4. The aforesaid writ petition was finally disposed of on 23.3.2012 leaving it open to the petitioners to make a representation before the Collector, Saharanpur for redressal of their 'grievance. A copy of the judgment of this Court is on record as Annexure 3 to the writ petition. 4. The petitioners, in compliance thereof submitted a detailed representation to the Collector, Saharanpur on 4.4.2012, a copy of the said representation is on record as Annexure 4 to the writ petition. It appears that an enquiry was initiated in respect of the status of the land and Tehsildar, Saharanpur submitted a report dated 20.4.2012 addressed to the Sub Divisional Magistrate, Saharanpur, (new number) wherein, he submitted that on Khasra No. 35 Area 0.7030 hectares. On the spot, the wheat crop was found on the said land and one sikmi kastkar (share cropper) of the petitioner is cultivating and his crop was found in the land in question. 5. From the record, it appears that in the said enquiry, the revenue authorities have got the statement of the, sikmi kastkar (share cropper). In the said enquiry, statements of three other persons namely Mohd. Imran, Shahzad and Bindu was recorded, their statement is part of the record. The S.D.O. also in his report dated 28.4.2012 has submitted that petitioners are in physical possession of the land. It appears that Collector asked the S.D.O. to submit a fresh report. In the subsequent report dated 25.5.2012, the same S.D.O. submitted that in the records Saharanpur Development Authority's name is recorded, but petitioners are in actual possession. On the basis of the above report, the Collector by impugned order has rejected the claim of the petitioners. 6. A counter-affidavit has been filed by the respondent Nos. 1 and 2. The stand taken by the State authorities is that statement under Section 6(1) of the Act, 1976 was submitted by Yaseen, petitioners' father on 14.8.1976, which was registered as Ceiling Case No. 3771 of 1976. After due enquiry, a draft statement was prepared and issued to petitioners' father on 30.8.1978 whereby 12204.68 sqr.mtr of land in Khasra Plot Nos. 431, 311, 315, 490, 504, 505, 506, 507/1551 and 621/2 was proposed to be surplus. 7. After due enquiry, a draft statement was prepared and issued to petitioners' father on 30.8.1978 whereby 12204.68 sqr.mtr of land in Khasra Plot Nos. 431, 311, 315, 490, 504, 505, 506, 507/1551 and 621/2 was proposed to be surplus. 7. It is stated that since no objection was filed, therefore, on the basis of the aforesaid draft statement, the proposed area was declared as surplus by an order dated 13.12.1978 by the Prescribed Authority. The aforesaid order is said to be served upon the petitioners, on 14.6.1979 pursuant to which a notification under Section 10(1) of the Act, 1976 was published in the official gazette on 27.10.1979 and notification under Section 10(3) was published on 20.2.1990. It is further averred that a notice under Section 10(5) of the Act was also issued in the name of Yaseen, the original tenure holder by affixing the same on door of the house of the petitioner on 5.7.1993. Thereafter, the possession of the plots in dispute was taken over by the authorized officials of the Urban Ceiling Department, and the possession was handed over to the Saharanpur Development Authority by order of the District Magistrate. A copy of the possession memo has also been brought on record as Annexure 4 to the counter-affidavit. 8. The Development authority, respondent No. 3 has also filed a counter-affidavit wherein the same facts have been reiterated. In regard to the possession, it is stated in Para 7 of the counter-affidavit that possession of the declared surplus land was obtained on behalf of the State Government on 27.7.1993, a copy of the possession memo has been brought on record as Annexure C.A. 4 and C.A. 5 of the affidavit and on the same day viz. on 27.7.1993, the possession has been handed over to the Saharanpur Development Authority. It is stated in the counter-affidavit that the alleged cultivatory possession of the agent of the petitioners over the disputed surplus land is illegal and unauthorized, as such benefits of Repeal Act, 1999 are not attracted in favour of the petitioners. 9. We have heard Sri Shesh Kumar, learned Counsel for the petitioner, Sri D.K. Tiwari and Sri Mohan Srivastava, learned Standing Counsel and Sri P.K. Singh, learned Counsel for Saharanpur Development Authority. 10. 9. We have heard Sri Shesh Kumar, learned Counsel for the petitioner, Sri D.K. Tiwari and Sri Mohan Srivastava, learned Standing Counsel and Sri P.K. Singh, learned Counsel for Saharanpur Development Authority. 10. Sri Shesh Kumar, learned Counsel for the petitioners submits that no notice under Section 10(5) was issued to the petitioners and they have not voluntarily surrendered the possession. Petitioners are still in physical cultivatory possession over the land and they have submitted that from the report of the Tehsildar and the S.D.M., it is evident that they have found that petitioners are in the cultivatory possession of the land. 11. Sri Shesh Kumar, learned Counsel for the petitioner has drawn our attention to the statement of sikmi khastkar (share cropper) of the petitioners recorded by the Revenue Authorities, who had stated that they have sown wheat crop on behalf of the petitioners. Both the authorities in their report have categorically recorded that petitioners are still in possession. It is further stated that in the impugned order, the District Magistrate's finding in regard to the possession of petitioners over the land is perverse. He has completely ignored those reports which are on the record. 12. He further submitted that in view of Section 3 and 4 of the Repeal Act, 1999, the proceedings against the petitioner stood lapsed as on the date of the enforcement of the amended Act, the petitioner was in the physical possession over the land in question. He has placed reliance upon the judgment of Apex Court in case of State of Uttar Pradesh v. Hari Ram, (2013) 4 SCC 280 , Special Leave Petition (C) No. 16582 of 2014 decided with Special Leave Petition (C) No. 38922 of 2013, State of U.P. and another v. Vinod Kumar Tripathi and others, on 19th January, 2016, Ram Chandra Pandey v. State of U.P., 2010 (7) ADJ 488 , State of U.P. Thru Secy Avas Avam Shahri Niyojan v. Ruknuddin and others, 2018 (11) ADJ 360 (DB), Lalji v. State of U.P. and others, 2018 (5) ADJ 541 , State of U.P. and another v. Nek Singh, 2010 (81) All.L.R. 456 . 13. Learned Standing Counsel submits that the possession has been taken by the representative of the Collector on 27.7.1993, a copy of the possession memo is on record as Annexure 4 to the counter-affidavit filed by the respondent Nos. 1 and 2. 13. Learned Standing Counsel submits that the possession has been taken by the representative of the Collector on 27.7.1993, a copy of the possession memo is on record as Annexure 4 to the counter-affidavit filed by the respondent Nos. 1 and 2. He further submits that the land has been handed over to the Saharanpur Development Authority on the same day, which is in the possession of the land. The learned Standing Counsel has placed reliance on a judgment of the Apex Court in the case of State of Assam v. Bhaskar Jyoti Sharma and others, 2015 (5) SCC 321 , that has been followed by a Division Bench of this Court in the case of Shiv Ram Singh v. State of U.P. and others, 2015 (7) ADJ 630 (DB). 14. Sri P.K. Singh, learned Counsel for the Saharanpur Development Authority has adopted the submission of learned Standing Counsel. 15. We have heard learned Counsel for the parties and perused the material on record. 16. Before adverting to the submission of learned Counsel for the parties, it would be advantageous to consider the some of the provisions. Chapter III of the Act, 1976 deals with the ceiling of vacant land. Section 6 provides that every person holding vacant land in excess of the ceiling limit shall file a statement before the competent authority giving the detail about the location, extent, value and such other particulars as may be prescribed under the Act regarding all vacant land held by him. Section 8 provides that a draft statement shall be prepared regarding vacant land, it shall be prepared on the basis of the statement submitted by the person and on the basis of enquiry which the competent authority made deems it fit. Sub-section 3 of Section 8 provides that the draft statement prepared by the competent authority shall be served on the person concerned calling upon him to file any objection, if any, within 30 days. After considering his objection, a final statement is preferred by the competent authority, and if, he has excess of the ceiling limit, the land is declared surplus and a notification is published under sub-section 1 of Section 10 of the Act. The said notification is published for the information of the general public in the Financial Gazette. The objection is indicated from all the interested persons in such vacant land. The said notification is published for the information of the general public in the Financial Gazette. The objection is indicated from all the interested persons in such vacant land. Sub-section 2 of Section 10 provides that after considering the objection filed by the interested person, the competent authority shall pass an order regarding the vacant land. Under Sub-section 3 of Section 10, a notification published in the Official Gazette and the excess land declared be deemed to have been acquired by the State Government and it shall be deemed to have been vested in the State Government free from all encumbrances. 17. Sub-section 5 of Section 10 provides that after the land is vested in the State Government, a notice in writing is issued to a person who may be in possession of it to surrender or deliver possession to the State Government or to any person duly authorized by the State Government within thirty days of the service of the notice. 18. Sub-section 6 of Section 10 lays down that if after service of notice under Sub-section 5 of Section 10, a person refuses or fails to comply the order, the competent authority may take possession of the vacant land. For the said purpose, he can use force also as may be necessary. Sub-section 5 and Sub-section 6 of Section 10 read as under: "(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. (6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary." 19. In the meantime, the Parliament enacted 'The Urban Land (Ceiling and Regulation Repeal Act, 1999 (for short Act 15 of 1999)'. In the meantime, the Parliament enacted 'The Urban Land (Ceiling and Regulation Repeal Act, 1999 (for short Act 15 of 1999)'. Section 4 of the Act, 1999 provides regarding the abatement of legal proceedings under the Principal Act pending immediately before the commencement of Act, 15 of 1999 (18th March, 1999). Section 3 and Section 4 of the Act read as under: "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 authorised 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 authorised 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." 4. Abatement of legal proceedings.--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 other 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 in so far 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." 20. The petitioners case is that the entire proceedings under the Act, 33 of 1976 stood abated in view of Section 3(2) as he is still in possession. The petitioners case is that the entire proceedings under the Act, 33 of 1976 stood abated in view of Section 3(2) as he is still in possession. The petitioners' claim that the possession was never taken by the State authority and they are still in physical possession of the land and they are cultivating their agricultural holding till date. When the State authorities had earlier threatened to dispossess them, they preferred a Writ Petition No. 30434 of 2002 which was disposed of by this Court on 23.3.2012 by giving them liberty to file a representation before the District Magistrate, Saharanpur who shall decide it by a speaking order. In compliance thereof, they submitted a representation before the District Magistrate. He also filed some documents to indicate his physical possession over the excess land which has been declared surplus. 21. The perusal of the record shows that the District Magistrate, Saharanpur called a report from the concerned review authority regarding the physical possession of the land. The Tehsildar visited the land in question and found that crop of the wheat was sown. On 19.4.2012, he recorded a statement of Tahir Hasan, Imran, Shahjad and Bindu. All the aforesaid persons had made a statement that the land in question is owned by the petitioner No. 1 and he has given the land to them on "batai" and they are cultivating the land on behalf of the petitioner and getting the share in the crop. A copy of their statement is on record. 22. The Tehsildar in his report dated 21.4.2012, addressed to the S.D.M., Saharanpur has clearly stated that the plot No. 35/0.703 hectare is recorded in the name of the petitioner No. 1 and 2, son of Yaseen. He found that in the disputed land, there was a wheat crops. On the basis of the said report, the S.D.M., Saharapur submitted a report to the District Magistrate, Saharanpur on 28.4.2012 wherein he has recorded that earlier Khasra No. 431, 311, 312, 490, 504, 505, 507, 551, 421/2 and 421/2, after the consideration proceedings, their number have been changed by the order of the C.O. dated 16.3.1979 and the new number is 35 which is also recorded in CH Form-41. The said report is Annexure 7 to the writ petition. It appears that the District Magistrate, Saharanpur again asked the S.D.M. to submit a fresh report. The said report is Annexure 7 to the writ petition. It appears that the District Magistrate, Saharanpur again asked the S.D.M. to submit a fresh report. In his report dated 24.5.2012, the S.D.M., Saharahpur has reiterated that the petitioners are in physical possession, however, since the land has been vested in the State Government, hence on the basis of the documents, it appears that the Saharanpur Development Authority is in possession however, physical possession is still with the petitioners, which is illegal. 23. On the basis of these reports, the District Magistrate, Saharapur has rejected the representation of the petitioners. We find that the findings recorded by the District Magistrate is perverse. The statement recorded by Tehsildar and his report as well as the first report of the S.D.M., Saharanpur dated 28.4.2012 clearly demonstrates the physical possession of the petitioners. The subsequent report dated 24.5.2012, the same S.D.M., Saharanpur has recorded that the physical possession of the petitioner are illegal and on the basis of the vesting of the land in State Government, the Saharanpur Development Authority shall be deemed to be in possession. This Court in its order dated 23.4.2012 had directed the District Magistrate, Saharanpur to consider the issue of the physical possession and the Court has also recorded the submission of the petitioners that no compensation was paid to them. 24. From the perusal of the order of the District Magistrate, it is evident that he has assumed that Saharanpur Development Authority has taken possession merely on the ground that a notification under Section 10(1) and 10(3) was issued, and, thus the land stood vested in the State Government. Petitioners, in the writ petition, has clearly stated that they are still in possession of the land. The possession memo was on record. 25. From the perusal of the record, it appears that pursuant to the notice issued to the petitioner under Section 10(5), they have not voluntarily surrendered the possession. There is no document on record to indicate that the petitioners had voluntarily surrendered possession to the State Government. In the Counter-affidavit, a general and vague statement has been made regarding taking over the possession. In the affidavit, no date has been mentioned when the possession under Section 10(5) was taken. In the possession memo, there is no signature to the petitioners or their father. In the Counter-affidavit, a general and vague statement has been made regarding taking over the possession. In the affidavit, no date has been mentioned when the possession under Section 10(5) was taken. In the possession memo, there is no signature to the petitioners or their father. In case, petitioners have not given voluntarily possession, then a notice under Sub-section (6) of Section 10 should have been issued. The State Government has not taken stand that any notice was issued under Section 10(6). The petitioners in paragraph No. 24 of the writ petition have averred that notice under Section 10(5) or 10(6) was not issued to them and the said statement of the fact has not been specifically denied. The relevant part of Para 19 is extracted: "19. That the contents of paragraph No. 24 of the writ petition are not admitted as stated, hence denied. The suitable reply has already been given in the preceding paragraphs of this counter-affidavit." 26. A perusal of the said reply does not show that pursuant to the notice issued under Section 10(5), petitioners had given voluntarily possession to the State Government. It is not the stand of the State that when the petitioners fail to give the possession, the State has taken it forcibly. In fact no notice under Section 10(6) was issued to take forcible possession. There is no material on record to indicate that the forcibly possession was taken from the petitioners and on the same day, it is alleged that the possession was handed over to the Saharanpur Development Authority. 27. From the material on record, we are not satisfied that the possession of the vacant land was taken from the petitioners in terms of the procedure of Section 10(5) and 10(6). Petitioners in their representation before the Collector has clearly stated that they or their father have not received any compensation for their land and they are also requested that spot inspection be made. The expectation of the petitioners are that they have not received any compensation has not been dealt with by the District Magistrate in his impugned order. 28. The question arises that on the date of enforcement of the Repeal Act, 1999, whether the petitioners were in physical possession or not. The expectation of the petitioners are that they have not received any compensation has not been dealt with by the District Magistrate in his impugned order. 28. The question arises that on the date of enforcement of the Repeal Act, 1999, whether the petitioners were in physical possession or not. The petitioners have denied the fact regarding the voluntarily surrender to the State Government under Section 10(6), in fact during the enquiry when the Tehsildar has made the visit of the land, it was found that the petitioners were in cultivatory possession over the land through his sikmi khastkar (share cropper). The statement of all the sikmi khastkar (share cropper) have been recorded by the Revenue Authorities and is part of the record. We find that the State Government has completely ignored those facts which goes to prove beyond doubt regarding the possession of the land over the land in dispute. 29. It is pertinent to mention that the State Government in exercise of its power conferred upon Section 35 of the Act, 1976 has framed "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)." The said directions reads as under: "35. Power of State Government to issue orders and directions to the competent authority.-The State Government may issue such orders and directions of a general character as it may consider necessary in respect of any matter relating to the powers and duties of the competent authority and thereupon the competent authority shall give effect to such orders and directions." 1. Short title, application and Commencement--These directions may be called the Uttar Pradesh Urban Land Ceiling (Taking of Possession Payment of Amount and Allied Matters Directions, 1983) 2. The provisions contained in this direction shall be subjected to the provisions of any directions or rules or orders issued by the Central Government with such directions or rules or orders. 3. They shall come into force with effect from the date of publication in the Gazette. 2 Definitions: 3. Procedure for taking possession of vacant Land in excess of Ceiling Limit--(1) The Competent Authority will maintain a register in 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 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 village Mohali 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 u/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 under Section 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. 324/11-27-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 ................ 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 alongwith copy of certificate to verify. Competent Authority…………… ……………” 30. We further find from the material on record that there is no document to indicate that how the possession of the petitioners has been handed over by the State Government to Saharanpur Development Authority. In the counter-affidavit of Saharanpur Development Authority, it is mentioned that the possession has been taken from the petitioner on 27.7.1993 and on the same day, State Government has handed over possession to Saharanpur Development Authority. The relevant part of the Paragraph 9 is extracted below: "9. That it is noteworthy that the aforesaid surplus land was subsequently transferred to Saharanpur Development Authority on 27.7.1993 for utilization in its development scheme. Accordingly much prior to the enforcement of Urban Land Ceiling Repeal Act, 1999 the said surplus land has under the actual physical possession of the answering respondent S.D.A." 31. Supreme Court in case of Hari Ram (supra) had occasion to deal with this, some issue regarding the vesting of the land in the State, the Apex Court has held that land shall vest in the State Government only when the procedures laid down under the law has been followed. The Court has interpreted the word "vested" which find place in the statutory provision under Sub-section 5 and 6 of Section 10, the Court has observed that for taking possession the de jure possession is not sufficient unless there is a de facto possession also. The relevant part of the observation of the Apex Court are herein under: "27. Vacant land, it may be noted, is not actually acquired but deemed to have been acquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the legislative purpose. Vacant land, it may be noted, is not actually acquired but deemed to have been acquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in hands of few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as sub-sections (5) and (6) of Section 10, the words 'acquired' and 'vested' have different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislative intent. Voluntary Surrender 28. The 'vesting' in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The Court in Maharaj Singh v. State of UP and others, (1977) 1 SCC 155 , while interpreting Section 117(1) of U.P. Zamindari Abolition and Land Reform Act, 1950 held that 'vesting' is a word of slippery import and has many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The Court in Rajendra Kumar v. Kalyan (dead) by Lrs., (2000) 8 SCC 99 held as follows: "We do find some contentious substance in the contextual facts, since vesting shall have to be a "vesting" certain. "To vest, generally means to give a property in." (Per Brett, L.J. Coverdale v. Charlton. Stroud's Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. "To vest, generally means to give a property in." (Per Brett, L.J. Coverdale v. Charlton. Stroud's Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. To "vest", cannot be termed to be an executor devise. Be it noted however, that "vested" does not necessarily and always mean "vest in possession" but includes "vest in interest" as well." 29. We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act. 30. Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under sub-section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made in" sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land. Peaceful dispossession 31. Sub-section (5) of Section 10, for the first time, speaks of "possession" which says where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorized by the State Government. 32. 32. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) to Section 10, there is no necessity of using the expression "where any land is vested" under sub-section (5) to Section 10. Surrendering or transfer of possession under sub-section (3) to Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) to Section 10 to surrender or deliver possession. Sub-section (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while sub-section (6) of Section 10 contemplates a situation of forceful dispossession." 32. The judgment of the Apex Court in the case of Hari Ram (supra) has been followed by the Division Bench of this Court in case of Gopi Ram v. State of U.P. and others, wherein same issue came up for consideration before the Division Bench. The Division Bench considering the fact in pursuance of 1976, Rules and held that State Government has delegated its power to Collector to take possession. Since the State has delegated its power to the Collector, therefore, the Collector has no authority to delegate its power upon any of revenue authority. The relevant part of the judgment reads as under: "From the facts, discussions, pleadings of the parties and from perusal of the original record, we are satisfied that actual physical possession of the land was never taken by the State Government. There is no material existing on the original record to demonstrate that possession was taken over by the State Government or any person duly authorised by it or by the competent authority. Once the State Government itself never came in possession over the land in dispute there does not arise any question of transferring possession of the said land in favour of the Agra Development Authority. Once the State Government itself never came in possession over the land in dispute there does not arise any question of transferring possession of the said land in favour of the Agra Development Authority. The State having failed to demonstrate that actual physical possession of the land declared surplus was taken over at any point of time prior to 18.3.1999 when the Repeal Act came into force in the State of Uttar Pradesh, subsequent alleged transfer in favour of the Agra Development Authority is a mere paper transaction inasmuch as the State Government when itself did not obtain actual physical possession could not have transferred the same. In the facts and circumstances, the petitioner is entitled to get benefit of the Repeal Act, 1999 and the writ petition deserves to be allowed. Accordingly, writ petition succeeds and stands allowed." 33. The issue with regard to peaceful possession and forceful possession in terms of sub-sections (5) and (6) of Section 10 of the Act, 1976 has been elaborately considered again by the Supreme Court in the case of Gajanan Kamlya Patil v. Additional Collector & Comp. Auth and others, JT 2014 (3) SC 211. The Supreme Court followed its earlier judgment in the Rajendra Kumar v. Kalyan, JT 2000 (8) SC 359. The relevant part of the judgment of Gajanan Kamlya Patil (supra) is extracted below: "13. We have, therefore, clearly indicated that it was always open to the authorities to take forcible possession and, in fact, in the notice issued under Section 10(5) of the ULC Act, it was stated that if the possession had not been surrendered, possession would be taken by application of necessary force. For taking forcible possession, certain procedures had to be followed. Respondents have no case that such procedures were followed and forcible possession was taken. Further, there is nothing to show that the Respondents had taken peaceful possession, nor there is anything to show that the Appellants had given voluntary possession. Facts would clearly indicate that only de jure possession had been taken by the Respondents and not de facto possession before coming into force of the repeal of the Act. Further, there is nothing to show that the Respondents had taken peaceful possession, nor there is anything to show that the Appellants had given voluntary possession. Facts would clearly indicate that only de jure possession had been taken by the Respondents and not de facto possession before coming into force of the repeal of the Act. Since there is nothing to show that de facto possession had been taken from the Appellants prior to the execution of the possession receipt in favour of MRDA, it cannot hold on to the lands in question, which are legally owned and possessed by the Appellants. Consequently, we are inclined to allow this appeal and quash the notice dated 17.2.2005 and subsequent action taken therein in view of the repeal of the ULC Act. The above reasoning would apply in respect of other appeals as well and all proceedings initiated against the Appellants, therefore, would stand quashed." 34. A Division Bench in case of Ratiram v. State of U.P. and others, 2018 (4) ALB 338, in respect of Saharanpur Development Authority has rejected the contention of the State and the Saharanpur Development Authority regarding their claim that they have taken possession of the vacant land. The relevant part of the judgment reads as under: "8. The 'Dakhalnama' a certified copy whereof has been produced before us does not even bear the signatures of any attesting witness. We find this to be a lapse and patent illegality the benefit whereof has to be given to the land holder in view of the Division Bench judgment in the case of Mohd. Islam and 3 others v. State of U.P. and 2 others, Writ Petition No. 15864 of 2015 decided on 4th December, 2017. It was also a case of District-Saharanpur. We extract paragraph Nos. 44 to 47 of the said judgment which are as under: "44. Since, in the present case, neither factum of taking actual physical possession by Competent Authority under Ceiling Act has been fortified by placing any document nor factum of possession of Development Authority at any point of time has been shown, therefore, argument advanced by learned Standing Counsel on the basis of State of Assam (supra) will not help. 45. Since, in the present case, neither factum of taking actual physical possession by Competent Authority under Ceiling Act has been fortified by placing any document nor factum of possession of Development Authority at any point of time has been shown, therefore, argument advanced by learned Standing Counsel on the basis of State of Assam (supra) will not help. 45. Viewed from the above exposition of law we find in the present case that no such exercise of issuing notice under Section 10(6) of the Act, 1976 and thereafter execution of memo on the spot had taken place which is mandatory for ceiling authorities as admittedly the original tenure-holder and then his successors had never voluntarily surrendered the possession of land. In the absence of voluntary surrender of possession of surplus land, the authorities were required to proceed with forcible possession. The document of possession memo would not by itself evidence the actual taking of possession unless it is witnessed by two independent persons acknowledging the act of forcible possession. As discussed above in the earlier part of this judgment we are not able to accept the alleged possession memo worth calling a document as such in the absence of certain requisites, nor does it bear the details of witnesses who signed the document. It bears mainly signatures of Chackbandi Lekhpal, a person taking possession and then the document has been directed to be kept on file. This is no way of taking forcible possession nor, a document worth calling possession memo. A mere issuance of notification under Section 10(3) and notice under Section 10(5) regarding delivery of possession does not amount to actual delivery of possession of land more especially in the face of the fact that the tenure holder had in fact not voluntarily made surrender of possession of surplus land and no proceeding under Section 10(6) had taken place. 46. Since, we have held that possession memo dated 20.6.1993 is not a possession memo and is a void document for want of necessary compliance under Section 10(6) of the Act, 1976, the petitioners are entitled to the benefit under Section 4 of the Repeal Act, 1999 that came into force w.e.f. 20.3.1999. 47. 46. Since, we have held that possession memo dated 20.6.1993 is not a possession memo and is a void document for want of necessary compliance under Section 10(6) of the Act, 1976, the petitioners are entitled to the benefit under Section 4 of the Repeal Act, 1999 that came into force w.e.f. 20.3.1999. 47. We may also place on record that respondents claim that possession of land in question was handed over to Saharanpur Development Authority pursuant to Government Order dated 29.12.1984 but here also we find that no material has been placed on record to show that any such actual physic cal possession was handed over to Saharanpur Development Authority and the said authority is in de facto possession of land in dispute. Except bare averment made in the counter-affidavit respondent have not chosen to place anything on record to support the stand that de facto possession over land in dispute is that of Saharanpur Development Authority. Therefore even this stand has no legs to stand and is rejected." 35. After the Repeal Act came into force, the word 'possession' under Sections 10(5), 10(6) of the Act, 1976 and sub-section (2) of Section 3 of the Repeal Act fell for consideration before a Division Bench of this Court in State of U.P. and another v. Nek Singh, 2010 Law Suit (All) 3581 : 2010 (81) All.L.R. 456 . In Nek Singh (supra) the Division Bench followed the judgments of earlier Division Benches of this Court in State of U.P. v. Doon Udhyog (P) Ltd., 1999 (4) AWC 3324 and State of U.P. v. Hari Ram, 2005 (60) All LR 535, and held as under: "[9] Otherwise also, the statutory benefit of the Repealing Act is also available to the landholder-respondent in the fact-situation of the matter, as the taking of the "possession" in the present case was neither de jure nor de facto. The term "possession" as per Sections 3 and 4 of the Repealing Act and Section 10(6) of the U.L.C.R. Act means and implies the lawful "possession" after "due compliance of the statutory provisions". In State of U.P. v. Boon Udhyog (P) Ltd., 1999 4 AWC 3324 , a Division Bench of this Court has held that where possession has been taken, its legality is to be decided on merits. In State of U.P. v. Boon Udhyog (P) Ltd., 1999 4 AWC 3324 , a Division Bench of this Court has held that where possession has been taken, its legality is to be decided on merits. Similarly, another Division Bench of this Court in State of U.P. v. Hari Ram, 2005 (60) All.L.R. 535 , has held that "in case possession is purported to be taken under Section 10(6) of the Act, still Court is required to examine whether 'taking of such possession' is valid or invalidated on any of the considerations in law. If Court finds that one or more grounds exist which show that the process of possession, though claimed under Section 10(5) or 10(6) of the Act is unlawful or vitiated in law, then such possession will have no recognition in law and it will have to be ignored and treated as of no legal consequence"..." 36. A Division Bench of this Court in Lalji (supra), after considering the judgment of the Supreme Court in Hari Ram (supra) and State of Assam v. Bhasker Jyoti Sharma and others, (2015) 5 SCC 321 , has held as under: "[29]. Faced with a situation where respondents could not place even an iota of evidence showing actual physical possession of disputed land by respondent, learned Standing Counsel sought to rely upon Supreme Court judgment in State of Assam v. Bhasker Jyoti Sharma and others, 2015 (5) SCC 321 and contended that irrespective of any defect in notice under Sections 10(5) or 10(6) of Act, 1976, if possession has been taken in any manner, Repeal Act 1999 will have no application. *** *** *** [37]. We may also mention at this stage that except bare averment that disputed land was transferred to ADA by competent Authority, no material has been placed on record about transfer of possession to ADA and infact nothing has been placed on record even to show that de facto possession of land in dispute before or after Repeal Act, 1999 is with ADA. ADA has also not placed on record anything to show that land in dispute is in its actual physical possession and in absence thereof, we had no occasion to require petitioner to prove, how de facto possession of land in dispute came in the hands of ADA. With regard to possession of land in dispute, except bare averments, nothing has been placed on record. With regard to possession of land in dispute, except bare averments, nothing has been placed on record. It appears that respondents were under impression that once notification under Section 10(3) has been issued, land in dispute vested in 'State' and thereafter, irrespective of fact whether actual physical possession is taken by respondents or not, land owner would cease to have any right and Repeal Act, 1999 will have no application though this assumption on the part of respondents, as we have already discussed, stood negated by Court in State v. Hari Ram." 37. As regards the case of Shiv Ram Singh (supra), the petitioner therein had challenged the order passed by the District Magistrate holding that the possession of the land declared surplus has been taken on 25th June, 1993, hence he was not entitled to the benefit of the provisions of Section 3 of the Repeal Act. In the said case, the notice under Section 10(1) was issued on 15th May, 1985, thereafter on 02nd June, 1986 a notification under Section 10(3) was issued and published in the official gazette, and on 25th February, 1987 a notice under Section 10(5) of the Act, 1976 was issued. The respondents-State had taken a stand that the possession was taken on 25th June, 1993 pursuant to the notice dated 25th February, 1987 i.e. prior to enforcement of the Repeal Act and in the revenue record the name of the State was mutated. The petitioner therein had earlier approached the Court by means of Writ Petition No. 47279 of 2002 claiming that he is still in possession over the land which was declared surplus, hence after the Repeal Act the possession cannot be taken over from him. The said writ petition was disposed of by this Court by issuing a direction upon the District Magistrate to consider his representation. The District Magistrate after furnishing opportunity to the petitioner by an order dated 10th May, 2007 held that the possession has already been taken on 25th June, 1983, hence the petitioner would not be entitled to the benefit of the Repeal Act. The petitioner challenged the said order of the District Magistrate after two years in July, 2009. In the meantime in the year 2008 the construction of a Sewage Treatment Plant (STP) for treating 210 MLD of sewage was commenced. The petitioner challenged the said order of the District Magistrate after two years in July, 2009. In the meantime in the year 2008 the construction of a Sewage Treatment Plant (STP) for treating 210 MLD of sewage was commenced. The Jal Nigam, in whose favour the land was transferred, filed a counter-affidavit in the said writ petition and took the stand that by the time the writ petition was filed, nearly 65% of the work had been completed at a cost of Rs. 73 crores and the petitioner was fully aware of the said facts but he did not file the writ petition for two years. In the light of those peculiar facts the Court did not examine the issue of actual possession as the possession was taken prior to 1999 and the District Magistrate after affording opportunity to the petitioner has recorded a finding that the possession was taken on 25th June, 1993. 38. We have carefully gone through the judgment of Shiv Ram Singh (supra) and we find that the said judgment is distinguishable for the reasons recorded above. 39. In the present case, we have found that the petitioners are still in possession and the State has not taken possession in accordance with law, hence, we are of the view that the State had no authority to handover the possession to the Saharanpur Development Authority. The Development Authority has not brought on the record any document or evidence that they have raised any construction over the surplus land of the petitioners which was transferred by the State to Development Authority. Thus, in absence of any averment or the documents to the said fact, we have to hold that petitioners are still in possession. 40. For all the reasons recorded above, we are of the view that in view of amended Act, 1999, proceedings initiated under the Act, 1976 stood lapsed, State authority shall not interfere in their possession and they will correct the entries in revenue record accordingly. 41. Thus we are of the view that the order dated 5.5.2014 passed by Collector, Saharanpur is illegal, which is set aside. 42. Present petition stands allowed. 43. No order as to costs.