Point of Law: Any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or
(ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within fine limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town committee, a cantonment board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture.

JUDGMENT :

Pradeep Kumar Singh Baghel, J.

1. The petitioner has laid challenge in the present writ petition the proceedings initiated under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (for short Act No. 33 of 1976) (Act, 1976) on the ground that the said proceedings stood abated in terms of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short Act 15 of 1999) (Repeal Act) and for quashing of the order dated 2.5.2017 passed by the District Magistrate, Varanasi.

2. Brief factual matrix may be noted. The petitioner claims that he is owner of the araji Nos. 31/1 area 11 decimal, 86/1 area 26 decimal, 86/4 area 20 decimal, 32/2 area 3A decimal. He claims to have half share out of total araji. The said land was within the municipal limit of the Varanasi and the land was recorded as agricultural land but being the land within the municipal limit the provisions of the Act, 1976 were made applicable. The petitioner submitted ceiling return/statement under sub-section (1) of Section 6 of the Act No. 33 of 1976 Act, which was registered as case No. 915/7035/76-77 (State v. Lallan) and case No. 916/7035/76-77 (State v. Bachau), Village Ranipur, District Varansari. It is stated that without serving the notice under Section 8(3) of the Act, 1976 illegal order was passed on 27.10.1978 under Section 8(4) of the Act, 1976 and out of 3218.54 square meter land 218.54 square meter land was declared surplus. Thereafter a notice is said to be issued under sub-section (5) of Section 10 of the Act, 1976, it bears the date 15.2.1982. The petitioner has averred in paragraph 7 of the writ petition which has been repeated in other paragraphs also that the said notice dated 15.2.1982 was never served upon the petitioner and as such the land holders neither surrendered the land to the State nor the respondents have ever taken actual possession from the petitioner.

3. It is stated that the petitioner is still in physical and cultivatory possession of the land in question and since the order under sub-section (4) of Section 8 of the Act, 1976 was never served upon the land holder, therefore, he could not file any appeal under Section 33 of the Act, 1976.

4. The petitioner has further averred that no proceeding under sub-section (5) or sub-section (6) of Section 10 of the Act, 1976 has been initiated, therefore, after repeal Act came into force respondents have no right to take possession from the petitioner.

5. It is worthwhile to mention that in the meantime the Act, 1976 was repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act 15 of 1999). The said Act was adopted by the State of U.P. Whereunder subject to the certain conditions mentioned in the provisions of the Act the pending proceedings shall be lapsed. That one of the relief sought in the writ petition is that to declare that the proceedings initiated under the Act, 1976 is abated in terms of the Repeal Act.

6. The petitioner had earlier approached this Court by way of Writ Petition No. 6757 of 2017, Raju v. State of U.P. and others. The said writ petition was disposed of on 13.2.2017 with a direction upon the respondent No. 2 to consider the fact relating to the actual physical possession of the plot in question and such an enquiry be undertaken at first instance by the District Magistrate. In pursuance of the order of this Court dated 13.2.2017 the petitioner had submitted detailed representation on 23.2.2017, wherein he has asserted that he is still in physical possession and no forceful possession has been taken under sub-section 6 of Section 10 of Act, 1976. It has also been averred that the petitioner never surrendered voluntarily his land after the alleged notice under sub-section (5) of Section 10 of the Act, 1976 was issued to him. The District Magistrate has rejected the representation of the petitioner by a cryptic order only on the gr