The vesting of land under a specific provision does not confer actual possession to the State unless it is proven that physical possession was taken or voluntarily surrendered.

JUDGMENT

Heard.

2. The present writ petition has been preferred with the following main prayers:-

"(i) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to not disturb the peaceful possession of the petitioner over the Gata No.623/1/Area 4489.50 square meter and 6622/Area 913.56 square meter, total area 5403.06 square meter situated in Village Bijnore Pargana Bijnor, Tehsil Sarojani Nagar, District Lucknow.

(ii) Issue a writ or direction in the nature of mandamus commanding the opposite parties to restore the entry of the petitioner over the land in question.

(iii) Issue a writ, order or direction in the nature of certiorari thereby quashing the entry dated 26.05.2008 corrected on 07.07.2009 in the Khatuni of the petitioner contain as Annexure no.2 in the interest of justice.

(iv) Any other writ, order or direction which this Hon'ble Court deems fit and proper under the circumstances of the case and in the interest of justice.

(v) Allow the writ petition with costs."

3. Brief facts of the case are that Gata No.623/1/Area 4489.50 Square meter and 6622/Area 913.56 square meter, total area 5403.06 square meter situated in Village Bijnor Pargana Bijnor, Tehsil Sarojani Nagar District Lucknow is recorded in the name of Jashoda Beva Thakur, the original tenure holder who was its Bhumidhar with transferable rights. A notice under section 8(3) of the Urban Land (Ceiling And Regulation) Act, 1976 (hereinafter referred to as 'Act, 1976') was issued in respect of aforesaid land and as per the opposite parties Jashoda did not respond, therefore, the said land measuring 5403.06 sq. mtrs. was declared surplus. On 26.12.1985, a notification under Section 10(1) of the Act, 1976 was issued. Thereafter on 01.12.1987, notification under Section 10(3) of the Act, 1976 was published. Jasoda was directed to handover possession of the said land on 12.05.1992, as claimed by the opposite parties, in view of Section 10(5) of the Act, 1976. Thereafter, the said land, as per opposite parties, was transferred to Lucknow Development Authority in view of Government Order dated 11.12.1996 and Section 10(6) of the Act, 1976. In fact in the counter affidavit of the State though it is mentioned that Jashoda was asked to handover possession of the land, but it is nowhere mentioned that she did handover or surrender her possession to the State authorities voluntarily or that it was forcibly taken. No proof of such handing over or taking over of possession has been annexed by the opposite parties in the counter affidavit. Only a copy of notice under Section 10(5) of the Act, 1976 has been annexed which by itself does not prove handing over or taking over of actual possession.

4. On 11.03.1999, the Urban Land (Ceiling and Regulation) Repeal Ordinance, 1999 was issued which was adopted by the State Legislature of U.P. under Article 252(2) of the Constitution of India on 18.03.1999. This Ordinance was replaced by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act No. 5 of 1999) (hereinafter referred to as the 'Repeal Act, 1999') by which the Act, 1976 was repealed. As per Section 5(2) of this Act, 1999, notwithstanding repeal of the Ordinance of 1999, anything done or action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of the Act, therefore, the adoption dated 18.03.1999 by State of U.P. holds good for the Act, 1999 also.

5. Sections 3 & 4 of the Act, 1999 read 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 tak