Court No. - 34 Case :- WRIT - C No. - 43193 of 2009 Petitioner :- Bhuwai Respondent :- State Of U.P. And Others Petitioner Counsel :- Raj Karan Yadav Respondent Counsel :- C.S.C. Hon'ble Prakash Chandra Verma,J.
Hon’ble Ram Autar Singh,J.
By means of this petition the petitioner has prayed for writ of mandamus
commanding the respondents not to disturb the petitioners possession over the
property in dispute.
We have heard learned counsel for the parties and have gone through the
record.
The Urban Land (Ceiling and Regulation) Act, 1976 was repealed by The
Urban Land (Ceiling And Regulation) Repeal Act, 1999 (15 of 1999), (herein
after referred to as an Act). Section 3 of the Act reads 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 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 judgement 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.
A perusal of Clause (a) of sub-section 2 of Section 3 clearly provides where
the possession of the land has not been taken over the said land shall not vest
in the State despite the proceedings having drawn. Here the possession will
mean the actual physical possession. The categorical statement has been made
in the writ petition that the possession has not been taken over by the State till
date and petitioner is in possession.
In the writ petition counter has been filed in which this fact has not been
denied rather it has been stated that possession has been taken over but it has
not been substantiated by evidence whether actual physical possession has
been taken over or not. There is no receipt obtained by the Collector
concerned from the owner of the land handing over the possession.
In the case of State of Tamil Nadu and another v. Mahalakshmi Ammal
and others reported in (1996) 7 SCC 269 has categorically held that
“possession of the acquired land would be taken only by way of
memorandum, panchnama, which is a legally accepted norm.” There is no
such document with counter affidavit filed by State of U.P. on record.
Possession on paper is a symbolic possession and word ‘possession’ used in
Clause (a) of Section (2) of Section 3 of the Act mean actual physical
possession and not the symbolic possession.
After the repealing of the Urban Land (Ceiling and Regulation) Act 1976 by
Act No. 15 of 1999 Urban Land (Ceiling and Regulation Repeal) Act 1999
the petitioners are entitled to the benefit of Section 3 of the Act No. 15 of
1999. The petitioners land shall not be treated to have been declared as vacant
land under the repeal Act.
For the reasons recorded above the instant writ petition is allowed. No orders
as to cost.
Order Date :- 20.7.2010
RKS/