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2014 Supreme(All) 723

ALLAHABAD HIGH COURT
BEFORE : TARUN AGARWALA AND RAJAN ROY, JJ.
YASIN AND OTHERS ......Petitioners
Versus
STATE OF U.P. AND OTHERS .......Respondents
(Civil Misc. Writ Petition Nos. 13218 of 2008, 14247 of 2006 and 37646 of 2008, decided on 9th April, 2014)

Advocates:
Counsel :
Utpal Chatterji, A.K. Gupta, Shashi Nandan and Vivek Saran for the Petitioner; C.S.C. and B. Dayal for the Respondents.

Headnote:Urban Land (Ceiling and Regulation) Act, 1976—Section 10(5)—Surplus land—Declaration of—Delivery of possession—Petitioners remained in possession of such land till the date of enforcement of the Repeal Act, 1999 and even thereafter—Petitioners are entitled to the benefit of the Repeal Act, since no possession was taken—Actual physical possession of the land in question was never taken by the State Government—Memo of possession was nothing but a mere noting of the officials of the State Government prepared in their office—No credence could be given to such document—State Government could not establish that they had taken actual physical possession of the land from the petitioners—Petitioners would be entitled to the benefit of Section 4 of the Repeal Act—The respondents restrained from interfering in their possession of the land in question. [Paras 17, 18 and 23]

       

JUDGMENT

Hon’ble Tarun Agarwala, J.—These writ petitions are being decided together since a common issue is involved.

2. In writ petition No. 13218 of 2008, the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred as the Act) declared 13409.16 square meters of land as surplus by an order dated 17.3.1979. Thereafter, the Competent Authority issued a notice dated 27.3.1993 under Section 10(5) of the Act directing the petitioner to hand over the possession of the land to the respondents within 30 days from the date of receipt of the letter failing which forceful possession would be taken.

3. Against this notice, the petitioner filed an appeal under Section 33 of the Act before the District Judge, in which an interim order dated 26.4.1994 was passed staying the delivery of possession of the surplus land. During the pendency of the appeal, the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred as the Repeal Act) came into existence, as a result of which the appeal of the petitioner was dismissed as abated by an order dated 30.11.1999. The petitioner contends that in spite of the fact that the land was declared surplus by an order dated 17.3.1979, the petitioner remained in possession till the date of enforcement of the Repeal Act and even thereafter. The petitioner contends that in 2006 he came to know that paper possession was given to the Meerut Development Authority and consequently, filed an application before the Meerut Development Authority as well as before the District Magistrate, Meerut contending that he was entitled to be given the benefit of the Repeal Act since no possession was taken. Since nothing was done, the appellant filed writ petition No. 55111 of 2006, which was disposed of by an order dated 5.10.2006 directing the petitioner to make a fresh detailed representation, which would be decided by the District Magistrate. Accordingly, a detailed representation was filed, which was considered and rejected by the District Magistrate by an order dated 2.1.2008. The petitioner, being aggrieved, filed the present writ petition praying for writ of mandamus directing the Tehsildar to reverse the entries in the revenue records and incorporate the name of the petitioner, as per the original entries and further prayed for a writ of mandamus commanding the respondents not to dispossess the petitioner.

4. A counter-affidavit has been filed by the respondent Nos. 1, 2 and 4 indicating that pursuant to the notice dated 27.3.1993 issued under Section 10(5) of the Act, possession was taken by the respondents on 2.4.1993 and on 10.7.2003 possession was given to the Meerut Development Authority. The respondents submitted that since possession was taken in 1993, much before the Repeal Act, no benefit under the Repeal Act could be given to the petitioner. In the counter-affidavit respondents did not annex any document to show that they had taken possession of the land in question.

5. The Meerut Development Authority has also filed a counter-affidavit indicating therein that the land vested with the State Government immediately after the publication of the notice under Section 10(3) of the Act and that taking of the possession was only a ministerial act, which was subsequently handed over to the Meerut Development Authority on 10.7.2003.

6. The Writ Court, after hearing the parties, allowed the writ petition by a judgment dated 25.10.2010. The State, being aggrieved by the said judgment, filed Special Leave Petition No. 2626190 of 2011, which was allowed by a judgment dated 4.1.2012. The Supreme Court remitted the matter to the High Court to decide afresh in the light of the fact that the High Court without averting to the pleadings of the appellants (i.e. State of Uttar Pradesh) and the documents produced by them had allowed the writ petition.

7. Since the counter-affidavit filed by the State did not contain any document, the Court passed various orders to bring on rec











































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