By the Court.—Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

2. The case of the petitioner is that though plots in dispute were declared surplus in the hands of recorded tenure-holder, Kedar, his grand father, who died in 1977 in a proceedings case No. K-1169/1976, State v. Kedar Nath, by means of an ex parte order dated 7.8.1983 under the Urban Land (Ceiling and Regulation) Act, 1976 (in short hereinafter referred to as ‘Act’), but actual physical possession has not been taken and, thus, he would be entitled to the benefit of the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (in short hereinafter referred to as ‘Repeal Act’).

3. Specific case set up by the petitioner in the writ petition is that actual physical possession had not been taken by the State as such he was entitled for the benefit of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (in short hereinafter referred to as ‘Repeal Act’).

4. A counter-affidavit has been filed by the State wherein it has been stated in paragraph 3(i) as under :

“3(i).That the tenure-holder Sri Kedar Nath S/o Baul, R/o Village Mavaiya, Pargana Arail Tehsil Karchhana, Allahabad has filed statement under Section 6 (1) of Urban Land (Ceiling and Regulation) Act, 1976 and after proper verification and consideration a proposed statement has been prepared through which total area of tenure-holder 18132.21 Sq. Metrs. land has been proposed as surplus and issued on 28.11.1979 under Section 8 (3) of the Act. The tenure-holder has not filed any objection before the competent authority within the time prescribed in the notice, thereafter, the competent authority passed an order under Section 8 (4) of the act on 7.9.1983 declaring 18132.21 Sq. mtrs., land as surplus according to thep rovisions of Act and after considering all the facts and evidence available on record and also after providing opportunity of hearing to the parties. It is further stated that the final statement letter under Section 9 of the Act has been issued on 11.4.84 and the matter was sent for publication under Section 10 (1) of the Act which was published on 30.6.1986 and the same was published in Government Notification under Section 10 (3) of the Act on 23.3.1996. Thereafter the aforesaid surplus land has been vested in State Government on 23.3.1996 and notice under Section 10 (5) of the Act has been issued and the aforesaid surplus declared land has been allotted to the Allahabad Development Authority, Allahabad according to the provisions of law.”

5. Again in paragraph 5 of the counter-affidavit, it has been stated as under :

“5. That the contents of paragraph 3 of the writ petition are not correct as stated hence denied. It is stated that the notice under Section 8 (3) of the Act has been issued and no objection has been filed by the tenure-holder before the Competent Authority thereafter the competent authority passed an order on 7.9.1983 under Section 8 (4) of the Act declaring total land 18132.21 sq. metres land as surplus according to the provisions of Act and after considering all the facts and evidence available on record and also after after providing opportunity of hearing to the parties. The aforesaid surplus land has been vested in State Government much prior to the implementation of Repeal Act, 1999.”

6. A perusal of the aforesaid averments clearly go to show that mere allegations have been made that surplus land has vested in the State Government much prior to the implementation of the Repeal Act, 1999. There is no averments or any material in the counter-affidavit to indicate as to when and how the possession was taken in pursuance of the order declaring the land as surplus. Neither notice under Section 10 (5) has been filed alongwith the counter-affidavit nor possession memo has been filed. Counter-affidavit even lacks the exact date of issuance of notice under Section 10 (5) of the Act, 1976 or date of taking over actual phy