JUDGMENT : 1. This writ petition has been filed with a prayer that the surplus land comprised in Gata No. 61 areas 204.8 square meter, Gata No. 219 areas 8106.10 square meters, Gata No. 220 areas 1638.80 square meters, Gata No.62 areas 1229.10 square meters, Gata No. 63 areas 4199.10 square meters, Gata No. 64 areas 13127.37 square meters and Gata No. 61 areas 1024.25 square meters of village Teeklapura, Majra Bingawan, Pargana and Tehsil and District - Kanpur Nagar may be entered in the Khataunis in the name of the petitioner. A further prayer has been made that the possession of the total area of 30512.63 sq. meter contained in Gata No. 61 areas 204.8 square meter, Gata No. 219 areas 8106.10 square meters, Gata No. 220 areas 1638.80 square meters, Gata No.62 areas 1229.10 square meters, Gata No. 63 areas 4199.10 square meters, Gata No. 64 areas 13127.37 square meters and Gata No. 61 areas 1024.25 square meters of village Teeklapura, Majra Bingawan, Pargana and Tehsil and District - Kanpur Nagar (herein after referred to as ''the land in question) may not be taken away from the petitioner. 2. The petitioner's case is that when the petitioner's predecessor-in-interest, and thereafter the petitioner, had remained in possession over the land in question which was earlier declared surplus and which was never taken away from the petitioner, then the Ceiling Authorities were wrongly treating the land as that of the State. 3. Learned counsel for the petitioner has stated that the Khasras of the year 1398F to 1401F(annexure 3 to the writ petition) and thereafter the khasras of the year 1420F(Annexure SA-3 to the supplementary affidavit filed on 7.2.2017) would go to indicate that the petitioner's predecessor-in-interest and thereafter the petitioner had continued to be in possession over the land in question. 4. Learned counsel for the petitioner has submitted that if under the Urban Land (Ceiling and Regulation) Act, 1976, (hereinafter referred to as ''the Act of 1976'), the land in question was declared surplus under Section 8(4) of the Act of 1976, and the possession of the land had not been taken over on or before the commencement of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as ''the Act of 1999'), the petitioner shall not be dispossessed in pursuance of any orders whatsoever of the Ceiling Authorities. Since the learned counsel for the petitioner has read out Section 3 of the Act of 1999, the same is being reproduced here 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 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 judgement 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. 5. Learned counsel for the petitioner, therefore, has submitted that since the petitioner had continued to be in physical possession of the aforesaid khatas, which were earlier declared surplus under the Act of 1976, because of the coming of the Act of 1999, the petitioner shall continue to be the owner of the land in question and the petitioner shall continue to be in possession. 6. In the instant case, learned counsel for the petitioner has stated that the petitioner whose predecessor-in-interest was Sri Bheekhu son of Deshraj and who was the owner in possession over the land in question, at no point of time, was dispossessed in pursuance of any of the orders passed by the Ceiling Authorities. 7. In the paragraph no. 6. In the instant case, learned counsel for the petitioner has stated that the petitioner whose predecessor-in-interest was Sri Bheekhu son of Deshraj and who was the owner in possession over the land in question, at no point of time, was dispossessed in pursuance of any of the orders passed by the Ceiling Authorities. 7. In the paragraph no. 13 of the writ petition, the petitioner has stated that the predecessor-in-interest, in fact, had no knowledge about any of the orders being passed under Section 8(3) and 8(4) of the Act of 1976 and in fact the predecessor-in-interest only came to know about the various proceedings under the Act of 1976 when he was sought to be dispossessed in the month of April 2003. It has been stated that, thereafter, unfortunately he died on 9.6.2003. 8. Learned counsel for the petitioner submits that thereafter the petitioner who had stepped into the shoes of Bheekhu because of an unregistered Will dated 27.5.2003 started contesting the matter and when the dispossession was being effected, he filed the instant writ petition. Learned counsel submitted that the petitioner was thereafter made aware of the order dated 28.5.1985, certified copy of which was obtained on 6.2.2004. This document was an order under Section 10(5) of the Act of 1976 and by this order under Section 10(5) of the Act of 1976, learned counsel for the petitioner submits the predecessor-in-interest of the petitioner was sought to be dispossessed from the plots in question, the area of which was 30512.60 square meters. 9. Learned counsel for the petitioner has submitted that the order under Section 10(5) of the Act of 1976 was not preceded by any notice under Section 10(5) of the Act of 1976. He further submitted that, in fact, the possession from the petitioner or his predecessor-in-interest was never taken and that all transfer of possession was only paper transaction. 10. Upon being confronted by a document which has been filed in the counter affidavit as annexure no. CA-1 which as per the State was an order by which the possession was taken under Section 10(6) of the Act of 1976, learned counsel for the petitioner submitted that this document again was only a paper transaction. 10. Upon being confronted by a document which has been filed in the counter affidavit as annexure no. CA-1 which as per the State was an order by which the possession was taken under Section 10(6) of the Act of 1976, learned counsel for the petitioner submitted that this document again was only a paper transaction. He submits that under Section 10(6) of the Act of 1976 if possession was to be taken then it ought to have been preceded by a notice and also the possession ought to have been given by the land owner/tenure holder to the Collector. He submits that by this document possession was given by the District Magistrate, Kanpur Nagar, to the supervisor Kanoongo on 22.1.1987. Learned counsel also submitted that there was no signature of any independent witness on this document who might have evidenced the transfer of possession. 11. Learned counsel for the petitioner relied upon paragraphs no. 36 and 37 of the judgement reported in 2013 (4) SCC 280 (State of U.P. vs. Hari Ram) and submitted that if a peaceful transfer of possession did not take place under Section 10(5) of the Act of 1976 then the State could have taken a forcible possession. He submitted that as per paragraph no. 37 of the aforementioned judgement, no dispossession of the tenure holder could be done under Section 10(6) of the Act of 1976 without any notice. Learned counsel since has relied heavily upon paragraphs no.36 & 37 of the judgement they are being reproduced here as under:- "36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under Sub-section (5) of Section 10. Sub-section (6) of Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under Sub-section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force - as may be necessary - can be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under Sub-section (5), in the event of which the competent authority may take possession by use of force. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under Sub-section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted to only in a situation which falls under Sub-section (6) and not under Sub-section (5) of Section 10. Sub-sections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice, that is "peaceful dispossession" and on failure to surrender or give delivery of possession under Section 10(5), than "forceful dispossession" under Sub-section (6) of Section 10. 37. The requirement of giving notice under Sub-sections (5) and (6) of Section 10 is mandatory. Though the word "may" has been used therein, the word "may" in both the Sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under Sub-section (5) or Sub-section (6) of Section 10 is that it might result in the land holder being dispossessed without notice, therefore, the word "may" has to be read as "shall"." 12. Learned counsel for the petitioner further submitted that as per the judgement of this Court report in 2018 (4) ADJ 749 (Harinam Singh and others vs. State of U.P.), the memo of possession was absolutely a sham documents as it did not bear the signature of the tenure holder. Further learned counsel for the petitioner submits that as has been stated in the judgement reported in 2018 (4) ADJ 749 , the transfer of the land in question from the District Magistrate to the Supervisor Kanoongo was absolutely inconceivable. Learned counsel submitted that there was no provision under any law that the District Magistrate himself would transfer the land to another State Authority i.e. the Supervisor Kanoongo. He submits that if at all there was a transfer then the District Magistrate himself or someone on his behalf ought to have taken the possession. Since the learned counsel heavily relied upon paragraphs no. 19, 20 and 21 of the judgement reported in 2018 (4) ADJ 749 , they are being reproduced here as under:- "19. He submits that if at all there was a transfer then the District Magistrate himself or someone on his behalf ought to have taken the possession. Since the learned counsel heavily relied upon paragraphs no. 19, 20 and 21 of the judgement reported in 2018 (4) ADJ 749 , they are being reproduced here as under:- "19. Applying the above law to the facts of the present case, in the first instance, we find that there has been no notice as contemplated under Section 10(6) of the Act, 1976 to the father of the petitioners who was recorded tenure holder. After notice under Section 10(5) since tenure holder did not surrender possession, it was mandatory for the respondents to have issued notice under Section 10(6) authorizing taking forceful possession. In the second instance we find that memo of possession which has been heavily relied by the respondents and which has been presented in the counter-affidavit as document evidencing delivery of possession under Section 10(6) and has been strongly defended by learned Additional Advocate General, we find that this document does not bear signature of tenure holder and apart from this, the document also acknowledges such statement which is inconceivable in the case of possession of memo of forceful dispossession of tenure holders. The document bears the recital that District Magistrate is delivering possession under orders of Prescribed Authority to Supervisor Kanoongo. We fail to understand as to how District Magistrate would deliver possession to the Supervisor Kanoongo whereas in law it is District Magistrate on whose behalf possession has to be taken. The possession memo certifies only that possession of land is taken in presence of so and so witnesses. From the authorities cited herein above, we are sure that in matters of forceful dispossession the witnesses who have signed should be from public. If a Revenue Officer signs as a witness and other Revenue Officer delivers land to another Revenue Officer, such document would be a sham. It is indeed a sorry state of affairs that Revenue Authorities have not only defended this document but referred it in their pleadings that delivery of possession has been effectively taken on the basis of this document. The contention raised in the writ petition was that the signatures of the person delivering the possession in the alleged possession memo is not of Ram Singh father of the petitioners. The contention raised in the writ petition was that the signatures of the person delivering the possession in the alleged possession memo is not of Ram Singh father of the petitioners. The District Magistrate in his letter dated 9.7.2017 has acknowledged this fact that the person who delivered the possession is Nayab Tehsildar namely Ram Asre Verma. Thus, contention raised in the writ petition stands admitted that it was not Ram Singh, the tenure holder, who had delivered the possession. Under the circumstances, we are bound to hold that no forceful dispossession as contemplated under Section 10(6) of the Act, 1976 had taken of petitioners' father and he continued in possession and after his death the petitioners came into possession and have continued to be in actual physical possession of land in question and are entitled to the benefit of Repeal Act. 20. Thus, in view of the above, in respect of land in question, ceiling proceedings have stood abated under the Repeal Act, 1999 and respondents are restrained from interfering with the possession of petitioners of the land in question in any manner whatsoever and Revenue Authorities are directed to carry out necessary correction in the land records accordingly. 21. In this case, we find very peculiar circumstance existing where Revenue Authorities prepared a manipulated document showing delivery of possession and then thereafter, contested the matter on the basis of said document knowing fully that the document does not constitute a valid document of Memo of possession and that there has never been a notice under Section 10(6) of the Act, 1976. The petitioners have not only been unnecessarily harassed and forced for the present litigation but the respondents have in a most mischievous manner contested the issue on a fraudulent document. We would be failing in our duty, if we let State respondents' conduct go unnoticed. State authorities are expected to present correct facts and with utmost sense of sincerity, but we find it most lacking in present case. To present a document purported to be one prepared under law may be incorrect for many defects but to present a document as one lawfully executed knowing it to be illegal is something impermissible act and conduct during judicial proceedings. To present a document purported to be one prepared under law may be incorrect for many defects but to present a document as one lawfully executed knowing it to be illegal is something impermissible act and conduct during judicial proceedings. We are shocked that instead of giving up its stand in given facts and circumstances of the case, the State respondents not only defended the document through pleadings but also advanced arguments in defense thereof. We are of considered opinion that this litigation has been forced by State authorities as they did not allow petitioners' claim illegally treating the ceiling proceedings as not abated and hence petitioner is entitled for exemplary cost. The petitioners are entitled to cost which we quantify as Rs. 2 lakhs. The cost shall be paid at the first instance by the State to the petitioners. However, it will be open for the State to recover the said amount from the persons who have been responsible for such act of carelessness and negligence and deliberate act of playing fraud and forging a document meant to be official one." 13. Further learned counsel for the petitioner submitted that there was absolutely a non-compliance of the direction which was issued in the year 1983 which was called the Uttar Pradesh Urban Land Ceiling (Taking of Possession payment of amount and Allied Matters) Directions, 1983. 14. Since the U.L.C. Form-I, II and III were produced in the Court by the learned Standing Counsel, the Court perused them and found that definitely the clauses where it had to be mentioned that the possession had been taken were not filled in accordance with law and on this fact the learned counsel for the petitioner heavily laid stress upon. 15. Further learned counsel for the petitioner submitted that in paragraph no. 11 of the writ petition, the petitioner had stated the following: "11. That, the petitioner is still in physical possession of the disputed land and doing agriculture work." 16. He submitted that this paragraph had been replied to in paragraph no. 16 of the counter affidavit. Since learned counsel for the petitioner relied upon paragraph no. 16 of the counter, the same is being reproduced here as Under : "16. That the contents of paragraph no. 11 of the writ petition stands denied. He submitted that this paragraph had been replied to in paragraph no. 16 of the counter affidavit. Since learned counsel for the petitioner relied upon paragraph no. 16 of the counter, the same is being reproduced here as Under : "16. That the contents of paragraph no. 11 of the writ petition stands denied. The alleged possession of the petitioner is illegal and on the basis of that possession the petitioner is not entitled for any relief under the Repeal Act." 17. Learned counsel for the petitioner further submitted that in paragraph no. 6 of the Supplementary Affidavit which the petitioner had filed on 7.2.2017 it was stated that the petitioner was in possession over the land in question. The paragraph no. 6 of the supplementary affidavit is being reproduced here as under : "6. That the actual possession of petitioner over the land in dispute is apparent from the Khasra 1420 Faseli. Copy of which obtained by the petitioner on 26.11.2016. The extract of Khasra 1420 faseli is being filed herewith and marked as Annexure No. S.A.-3 to this supplementary affidavit. In the Khasra cultivation of crop is already recorded are shows the actual possession of the petitioner predecessor over the land in dispute." 18. In paragraph no. 9 of the supplementary counter affidavit, the reply was that the possession though was there it was illegal. Since learned counsel for the petitioner read out paragraph 9 of the counter affidavit the same is being reproduced here as under : "9. That the contents of paragraph no. 6 of the supplementary affidavit, as stated, are not admitted hence denied. The correct facts are that in the khasra for the year 1420 fasli, the agriculture as well as urban ceiling both is recorded. From the aforesaid it is evident that the agriculture on the land in question is illegal and amounts to encroachment and any possession of the petitioner are illegal. The aforesaid facts also gets strength from the decision of this Hon'ble Court in Writ Petition No. 28180 of 2007 (Suresh Kumar vs. State of U.P. and others) and Writ Petition No. 37193 of 2017 (Suresh Kumar vs. State of U.P. and others) in which the Hon'ble Court has been pleased to hold that such kind of agricultural use would be treated and deemed as illegal and unauthorized." 19. Learned counsel for the petitioner further submitted that the petitioner had the locus standi to file the writ petition as he had stated in the writ petition itself that he had inherited the property in question because of the will dated 27.5.2003. This fact was mentioned in paragraph no. 9of the writ petition. Paragraph no. 9 of the writ petition which states this fact is being reproduced here as under:- "9. That, the Bheekhu has executed a un-resgistered will in favour of the petitoiner on 27.5.2003. The true/photostat copy of the un-registered will dated 27.5.2003 executed by the Bheekhu in favour of the petitioner, is being filed here with and marked as Annexure no.6 to this writ petition." 20. In the counter affidavit of the State, learned counsel for the petitioner submitted that the State had only vaguely denied the contents of paragraphs no. 8 & 9 in paragraph no. 14 of the counter affidavit. The paragraph no. 14 of the counter affidavit is being reproduced here as under:- "14. That the contents of paragraph no. 8 and 9 of the writ petition are within the specific knowledge of the petitioner as such he is to put strict proof in respect thereto." 21. The State was represented by the Additional Advocate General Sri M.C. Chaturvedi, Senior Counsel, who was assisted by Sri Mohan Srivastava and Ms. Shubhra Singh learned Standing Counsel. Sri M.C. Chaturvedi, Senior Counsel, submitted that firstly the petitioner had no locus standi as he was only a legatee of the original tenure holder Sri Bheekhu who had died on 9.6.2003. He had submitted that if at all any objection had to be made to the possession being taken by the State then it was Bheekhu who should have come forward. Secondly, the learned Additional Advocate General submitted that the possession of the plots in question was taken way back on 22.1.1987 and, therefore, the petitioner had approached the High Court very belatedly. 22. The record of the case was produced by the learned Additional Advocate General in sealed cover and he showed the original documents by which the possession was taken over. This document was also filed as annexure no. CA-1 to the counter affidavit which was filed on 19.3.2005. Learned Additional Advocate General, therefore, submitted that the petitioner could not argue that he was in possession. 23. This document was also filed as annexure no. CA-1 to the counter affidavit which was filed on 19.3.2005. Learned Additional Advocate General, therefore, submitted that the petitioner could not argue that he was in possession. 23. Learned Additional Advocate General thereafter further submitted that as per the statutory mandate there was no requirement to issue a notice after an order was passed under Section 10(5) of the Act of 1976. Learned Additional Advocate General, therefore, submitted that there was no merit in the case and the writ petition be accordingly dismissed. 24. Having heard Sri M.D. Singh Shekhar, Senior Advocate, assisted by Sri Vaibhav Goswami learned counsel for the petitioner and Sri M.C. Chaturvedi, learned Additional Advocate General, assisted by Ms. Shubhra Singh for the State and Sri Abhinava Krishna Srivastava learned counsel for the Kanpur Development Authority, this Court is of the view that the writ petition deserves to be allowed. 25. The petitioner is a legatee of the original tenure holder. He had inherited the property by means of a Will. The Will had not been questioned in any court of law. Therefore, the objection of the learned Additional Advocate General that the petitioner had no locus standi has no legs to stand. Further from the record, we find that the petitioner had throughout been in possession over the plots in question. Even in the counter affidavit which was filed on 19.3.2005 in paragraph 16 the State had admitted the possession of the petitioner. So also was the case in paragraph no. 9 of the Supplementary Affidavit which had been filed by the State on 16.5.2018. Under the Act of 1999, the only determining factor was whether the State Government had taken actual physical possession of the excess land before 18.3.1999. The question whether the land holders had accepted the orders passed under Section 8(4) of the Act of 1976 was irrelevant. What had to be only looked into was as to whether the petitioner was in possession. In the instant case, we find that the document dated 22.1.1987 which has been filed as annexure-I to the Counter Affidavit, and the original of it was also seen by us when the record was produced by the Additional Advocate General, was a sham document. No possession definitely was taken over by the State and there was no de facto transfer of possession. No possession definitely was taken over by the State and there was no de facto transfer of possession. Even though under Section 10(6) of the Act of 1976, we find that there is no requirement of a notice before action is taken under Section 10(6) of the Act of 1976, but as per the Supreme Court decision in 2013 (4) SCC 280 (paragraph 37) a notice before action is taken under Section 10(6) of the Act of 1976 is mandatory. 26. Under such circumstances, we find that when there was no notice under Section 10 (6) of the Act of 1976, transfer of possession also could not have taken place. The document annexure CA-I was also a document which evidenced a sham transfer. The tenure holder had not handed over possession. Instead the District Magistrate had handed over the possession to the Supervisor Kanoongo. This could not be done. Also there was no independent witness to witness the transfer. Also, we find that the ULC Forms I, II and III have not been filled in accordance with law. Everything appears to have been done in the most inappropriate manner. Also since the document dated 22.1.987 has been held to be a sham document, definitely no transfer had taken place. What is more even in the counter affidavit there is an admission that the petitioner was in possession, though illegal. 27. Under such circumstances, the writ petition is allowed. The petitioner may not be dispossessed from the land in question which had been declared as excess land. Also in the revenue entries if the petitioner's name had been deleted the same may be restored vis-a-vis Gata No. 61 areas 204.8 square meter, Gata No. 219 areas 8106.10 square meters, Gata No. 220 areas 1638.80 square meters, Gata No.62 areas 1229.10 square meters, Gata No. 63 areas 4199.10 square meters, Gata No. 64 areas 13127.37 square meters and Gata No. 61 areas 1024.25 square meters village Teekapurva, Majra Bingawan, Pargana and District Kanpur Nagar. 28. We are conscious of the fact that during the pendency of the writ petition there was no interim order operating. Under such circumstances, not only should the petitioner's name be entered in the revenue record but also the State Authorities should ensure that the petitioner should be given possession over the land in question if he has been forcibly dispossessed during the pendency of the writ petition. Under such circumstances, not only should the petitioner's name be entered in the revenue record but also the State Authorities should ensure that the petitioner should be given possession over the land in question if he has been forcibly dispossessed during the pendency of the writ petition. Also we provide that if the dispossession has resulted in certain irreversible changes i.e. to say that the petitioner cannot be given possession then the petitioner may be compensated treating the land to have been acquired. 29. The original documents which were handed over to the Court be put in sealed cover and be returned to the Registrar General for being handed over to the relevant authorities.