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2015 Supreme(All) 1365
ALLAHABAD HIGH COURT
BEFORE : KRISHNA MURARI AND AMAR SINGH CHAUHAN, JJ.
STATE OF U.P. ....Petitioner
Versus
BALBIR SINGH AND ANOTHER ....Respondents
(Civil Misc. Writ Petition No. 36390 of 1998, decided on 15th September, 2015)
Counsel :
Sanjay Goswami, S.C. for the Petitioner; C.S.C., R.C. Singh, Ankit Gaur and B. Dayal for the Respondents.
Headnote:Urban Land (Ceiling and Regulation) Act, 1976 – Sections 8(3), 10(1), 10(2) – Urban Land (Ceiling and Regulation) Repeal Act, 1999 – Sections 2, 3 and 4 – Urban land – Declaration as surplus – Abatement – A proceeding under Article 226 of Constitution cannot be held to be a proceeding relating to any order made or purported to be made under the Principal Act so as to result in its abatement under Section 4 of the Repeal Act – Petitioner allegedly took over possession of surplus land on 29.9.1993 – Proceedings for declaration of surplus land in hands of respondent-tenure holder were finalised after publication of notification under Section 10 (3) of 1976 Act on 12.2.1986 – Mere vesting of land under Section 10 (3) would not confer a right on the State Government to have de facto possession of vacant land unless there has been a voluntarily surrender of the vacant land before 18.3.1999 or forceful possession of land under Section 10 (6) of the Act – Actual physical possession not ever taken by the State Government and failed to take possession of the land declared surplus prior to enforcement of Repeal Act – State Government not entitled to interfere in the possession of respondents over the land in question. [Paras 12 to 32]
Result; Petition Dismissed.
Hon’ble Krishna Murari, J.—Heard Shri Vishnu Pratap, learned Standing Counsel for the petitioner and Shri R.C. Singh appearing for the respondents.
2. This writ petition arises out of proceedings under Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the ‘1976 Act’).
3. Facts, in brief, giving rise to the dispute are as under.
A notice under Section 8 (3) of the 1976 Act was issued in the name of the respondents by the competent authority proposing to declare certain area of land as surplus. When no objections were filed, the competent authority vide order dated 3.7.1982 confirmed the draft statement. Notification under Section 10 (1) of the 1976 Act was issued on 25.11.1982, which was published in official Gazette on 9.11.1985. Again since no objections were received under Section 10 (2) of the 1976 Act, a notification under Section 10 (3) was published on 12.2.1986. Thereafter, a notice under Section 10 (5) was issued to the respondents requiring them to surrender possession of the land declared as surplus. At this stage, respondents filed an appeal before the District Judge, which was allowed vide judgment and order dated 9.1.1998 holding that there was no surplus land.
4. Aggrieved by the same, State of U.P. filed the instant petition. A learned Single Judge vide order dated 11.4.2012 allowed the writ petition and set aside the order dated 9.1.1998 passed by the appellate authority. The respondents filed a review petition alleging that the tenure holder, Balbir Singh died during the pendency of the writ petition and the order passed in writ petition was against a dead person, as legal heirs were not substituted. A learned Single Judge vide order dated 13.11.2014 allowed the review application and restored the writ petition alongwith the interim order to its original number. An opportunity was given to the petitioner, State of U.P. to implead the legal heirs of the deceased respondent. Thereafter, a counter-affidavit was filed by the heirs of the deceased respondent alleging that since the possession of the land was not taken, the proceedings are liable to be abated after enforcement of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as the ‘Act, 1999’).
5. For a better appreciation of the controversy, relevant Sections 2 to 4 of the Act, 1999 are reproduced hereunder.
“2. Repeal of Act 33 of 1976—The Urban Land (Ceiling and Regulation) Act,1976 (hereinafter referred to as the Principal Act) is hereby repealed.
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
