Under the urban ceiling legislation, mere vesting of land in the state under Section 10(3) is insufficient to preclude the benefit of the Repeal Act; the state must prove actual physical possession was taken following mandatory notice service under Section 10(5) or 10(6).

JUDGMENT :

SUDHANSHU CHAUHAN, J.

1. Heard Ms. Pooja Agarwal, learned counsel for the petitioners and Sri M.C. Chaturvedi, learned Additional Advocate General, assisted by Sri Mohan Srivastava, learned Standing Counsel and Sri Abhinava Krishna Srivastava, learned counsel for the respondent Development Authority.

2. The present writ petition has been filed challenging the proceedings initiated against the petitioners under the Urban Land (Ceiling and Regulation) Act, 1976 and also seeking a direction to restrain the respondents from interfering with the peaceful possession of the petitioners over the land being Gata Nos. 773 and 789 situated in Village Sonakpur, Tehsil and District-Moradabad.

3. Case of the petitioners is that Gokul was the original tenure holder of the land in dispute being part of Gata Nos. 773 and 789 having an area of 7114.40 sq. meters situated in Village Sonakpur, Tehsil and District- Moradabad. Gokul was succeeded by four sons namely, Chhokhelal, Sohan Lal, Dalpat and Ramgopal. The petitioner nos. 1 to 9 are the descendants of sons of late Gokul and the petitioner no. 10 is the son of late Gokul. It is stated that the order under Section 8(4) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the Act, 1976”) was passed behind the back of predecessor of the petitioners. Further the order under Section 8(4) was communicated vide notice dated 26.07.1980.

4. It is stated that the predecessors of the petitioners were in possession of the land in dispute and continue to remain in possession thereof. In this regard, the petitioners have relied upon the khatauni of the Fasli year 1382-87 as well as khatauni of the Fasli year 1414-1419, wherein the land in dispute is recorded in the name of petitioners and their predecessors.

5. The petitioners further state that the alleged possession memo dated 27.08.1984 does not bear signature of the land owners and the independent witnesses and as such is a bogus document. The name of the petitioners and their predecessors have continued to be recorded in the revenue records and as such it is beyond doubt that the petitioners are in possession of the land in dispute. It is also the case of the petitioners that the provisions of the U.P. Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters), Directions, 1983 issued under Section 35 of the Act, 1976 have not been complied with.

6. The petitioners also state that when the authorities started interfering in the possession of the petitioners, it was only thereafter that the petitioners came to know about the orders passed under the Act, 1976. The petitioners in this regard had also filed a representation dated 05.02.2010 before the competent authority-respondent no. 2 for abatement of the proceedings of the ceiling case. However, as no action was taken, hence, the petitioners were compelled to file the present writ petition.

7. One of the submissions made by the petitioners is that the land in dispute lies beyond the perimeter of 1 km from the erstwhile Nagar Palika, Moradabad and as such does not fall within the limits of the urban agglomeration. In this regard, the petitioners have relied upon the report of the Naib Tehsildar dated 08.02.1979 in Case No. 978/4248 (State vs. Ratan Lal), wherein Gata Nos