Ram Autar And Ors. vs State Of U.P. Thru. Secr. Ministry Of Urban Devp. And Ors.
- Court
- Allahabad High Court
AFR
Reserved On: 02.12.2025
Delivered On: 25.05.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - C No. - 23827 of 2010
Ram Autar and Ors.
…..Petitioner(s)
Versus
State of U.P. Thru. Secr. Ministry of Urban Devp. and Ors.
…..Respondent(s)
Counsel for Petitioner(s) : A.K. Pandey, J.J. Munir, Pooja
Agarwal, R P Rajan
Counsel for Respondent(s) : Abhinava Krishna Srivastava, Arun
K. Singh Deshwal, C.S.C.,
Dharmendra Singh Chauhan, P.k.
Singh, Pradeep Kumar Singh
In Chamber
HON'BLE SARAL SRIVASTAVA, J.
HON'BLE SUDHANSHU CHAUHAN, J.
(Delivered by Hon’ble 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
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WRIC No. - 23827 of 2010
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.
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WRIC No. - 23827 of 2010
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. 612 to 882 of Village Sonakpur,
District Moradabad, were held to be beyond the perimeter of 1 km of the
erstwhile Nagar Palika, Moradabad. A similar report dated 10.05.1979
of the Naib Tehsildar had also been filed in Case No. 305/944 (State Vs.
Jathu). It is submitted that it was only on the basis of the report of the
Naib Tehsildar that Gata Nos. 612 to 882, situated in Village Sonakpur
District Moradabad were exempted under the Act, 1976.
8. It is also stated that respondent no. 2 in Case No. 234/1250/3050
(State vs. Fakhira) vide letter dated 06.04.1992 had held the land in the
said case to be exempted under the Act, 1976 as it fell beyond the
perimeter of 1 km of Nagar Palika, Moradabad. Hence, it is stated that
the land in dispute should be exempted from proceedings under the Act,
1976. Further the District Magistrate vide order dated 04.08.2016 had
exempted a similarly situated land comprised in Gata No. 798 from the
Act, 1976.
9. Besides, the petitioners also rely upon a map of delimitation of Nagar
Palika Moradabad prepared in the year 1967, which shows that the
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WRIC No. - 23827 of 2010
Village Sonakpur was beyond the perimeter of 1.5km from the outer
limits of Nagar Palika. In this regard the petitioners have also relied
upon the scheme of delimitation of Nagar Nigam Moradabad, 2017
wherein the Village Sonakpur does not fall within the limits of Nagar
Nigam Moradabad. The petitioners state that Village Sonakpur falls
under Gram Panchayat Sonakpur Dehat and as such no proceedings
could have been taken place in respect of land in dispute of the
petitioners under the Act, 1976.
10. Per contra, it is the case of the State-respondents that in Ceiling Case
No. 2770/3627 (State Vs. Gokul) notice under Section 8(3) was issued
on 14.04.1980 and served upon Sohan Lal, son of Gokul. However, as
no objections were filed, order under Section 8(4) was passed on
24.06.1980 declaring 7114.40 sq. meters of land as vacant surplus. Final
statement under Section 9 was issued on 26.07.1980. Thereafter
notification under Sections 10(1) and 10(3) were published in the State
Gazette on 29.08.1981 and 10.03.1984 respectively. Notice under
Section 10(5) was issued on 11.04.1984 and served upon the wife of the
original land holder, Smt. Leelawati on 16.04.1984. Subsequent thereto
the possession of the land was taken vide order dated 27.08.1984 and the
land was recorded in the name of State in the revenue records. Thereafter
the possession of the land was transferred to Moradabad Development
Authority-respondent no. 3 vide transfer memo dated 18.01.1990.
11. It is stated that the alleged report of the Naib Tehsildar dated
08.02.1979 was never accepted by competent authority and was not
taken into cognizance by the competent authority while passing the order
dated 15.02.1979 under Section 8(4) of the Act, 1976 in the concerned
ceiling case. Moreover, the authenticity of the alleged report dated
08.02.1979 is extremely doubtful as the report is cryptic and runs only in
a few lines yet suggests that as many as 271 plots (Gata Nos. 612 to 882)
have been exempted from the Act, 1976. Similarly, the report dated
10.05.1979 was also not accepted by the competent authority in the order
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WRIC No. - 23827 of 2010
dated 10.04.1992 passed in Ceiling Case No. 305/994 (State Vs. Jathu)
wherein the competent authority had relied upon the report dated
07.04.1992 prepared by the draftsman.
12. In respect of the letter dated 06.04.1992 relied by upon the
petitioners, it is contended that the same was never dispatched and the
authenticity of the said letter is doubtful. Further, there was no occasion
for exempting Gata Nos. 612 to 882 from urban ceiling and no order has
been passed by the respondent no. 2 while taking into consideration the
said reports of Naib Tehsildar as relied on by the petitioners.
13. As far as the order dated 04.08.2016 passed by the District
Magistrate, Moradabad is concerned, it is contended that in three ceiling
cases the land holders were recorded tenure holders of Gata No. 798
while the ceiling proceedings inadvertently had taken place in respect of
Gata No. 792, which was not the land of the land owners, it is under the
said circumstances that Gata No. 798 was exempted from proceeding
under the Act, 1976 as no proceedings had taken place in respect of the
same.
14. It is also stated that in Ceiling Case No. 234/1250/3050 (State Vs.
Fakira), it was held by the competent authority that Gata Nos. 867 and
845 were found to be beyond the urban agglomeration and as such the
land was exempted from the Act, 1976, which is not so in the case of the
petitioners where the land is situated within 1km of urban
agglomeration. Further the Gazette notification under Section 2(n) of the
Act, 1976 was published on 30.09.1978, in pursuance thereof the
concerned authorities at Bareilly got a map prepared of the urban
agglomeration area of Moradabad wherein Village Sonakpur was shown
to be included in the urban agglomeration and the rate of compensation
payable was also determined. Besides, the respondents also rely upon the
report of Tehsildar Sadar, Moradabad to show that Gata Nos. 612 to 882
fall within the perimeter of 1km of Nagar Nigam, Moradabad. It is
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WRIC No. - 23827 of 2010
categorically stated that only the land falling under the Gata Nos. 845,
847, 866 and 867 in Village Sonakpur, District Moradabad had been
exempted from the Act, 1976.
15. Besides attention is also drawn to the fact that the petitioners in
response to the notice dated 22.03.1997 under Section 11(7) had sought
time to file objections vide application dated 05.04.1997. Besides, legal
heirs of the original tenure holder had filed Writ Petition No. 62393 of
2013 (Gokul and others Vs. State of U.P. and others) with regard to land
in Ceiling Case No. 2770/3627 and the same was dismissed as
infructuous.
16. Further the revenue entries in the name of the State were duly
recorded in the mutation register (R-6) on 09.02.1996 at serial no. 26.
Besides, the respondents have also filed the photographs of the land in
dispute to show their possession over the land.
17. The respondent no. 3-Mordadabad Development Authority has
supported the stand taken by the State and has further stated that the
ceiling land in Village Sonakpur and adjoining areas fall under a
residential scheme Sonakpur Awasiya Yojana. For this purpose,
respondent no. 3 has also acquired and taken possession of the adjoining
land (not covered under the Act, 1976) measuring 20.75 hectares through
acquisition and transfer.
18. It is stated that respondent no. 3 has spent an amount of about Rs. 84
crores for the development of the said residential scheme. The
respondent no. 3 has filed the summary of expenditure incurred and the
lay out plan of the scheme to show that the land in dispute falls under the
said residential scheme, which was advertised on 24.01.2013 thereby
inviting applications for allotment of plots.
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WRIC No. - 23827 of 2010
19. It is also stated that the fact regarding taking over possession of the
land in dispute has duly been recorded in ULC Form-1 under the
Directions, 1983. Besides, judgment of Coordinate Benches arising out
of proceedings under the Act, 1976 in respect of Village Sonakpur and
adjoining areas wherein the writ petitions have been dismissed have also
been relied upon by the respondent no. 3-Moradabad Development
Authority.
20. Lastly, it is contended that the present writ petition has been filed
after a delay of 30-35 years after the land in dispute was declared vacant
surplus and as such is liable to be dismissed only on the ground of delay
and laches.
21. It is the contention of the petitioners that the petitioners have
continued to remain in possession of the land in dispute and in view of
the provisions of the Urban Land (Ceiling and Regulation) Repeal Act,
1999 the proceedings of ceiling case stand abated and the petitioners are
entitled to remain in possession of the land in dispute. It is further
contended that no proceedings under Section 10 (6) of the Act, 1976,
ever took place and the petitioners or their predecessors at no point of
time had handed over the possession of the land in dispute to the
respondent. The aforesaid fact is evident from the perusal of the
possession memo, which does not bear the signature of the petitioners or
their predecessors and as such it is evident that de facto possession of the
land was never taken by the respondent.
22. On the other hand the contention of the respondents is that the
proceedings under the Act, 1976 stood concluded with the taking over of
the possession of the land in dispute on 27.08.1984 and apparently the
possession of the land is with the respondent no.3-authority and the same
falls under a residential scheme, hence, proceedings under the Act, 1976
stood concluded prior to the enforcement of the Repeal Act, 1999.
Further the present writ petition is bound to be dismissed solely on the
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WRIC No. - 23827 of 2010
ground of delay and laches having been filed after a lapse of about 26
years after taking possession of the land in dispute.
23. It is evident from the records that the land holder Gokul passed away
after filing of the ceiling return under Section 6(1) of the Act,1976.
Subsequently the name of his son Sonhal Lal, Dalpat and Ramgopal
were substituted in his place. The perusal of the order dated 24.06.1980
passed under Section 8(4) further reveals that the notice under Section
8(3) was sent through registered post but was returned unserved and was
subsequently served personally on 23.04.1980. The petitioners on the
other hand state that the order under Section 8(4) was passed behind the
back of the petitioners. Further the petitioners have themselves relied
upon the notice under Section 9 dated 26.07.1980. It is not disclosed by
the petitioners as to how and when the petitioners came to know about
the final statement prepared under Section 9.
24. It has been contended on behalf of the respondents that the notice
under Section 10(5) dated 11.04.1984 was served personally on
Leelawati, the wife of the original land holder on 16.04.1984. However,
the perusal of notice under Section 10(5) reveals that it has not been
signed / received. by any of the land holders or any person on their
behalf. Further the possession memo dated 27.08.1984 bears the
signature of two witnesses but has not been signed by the land holder or
any person on their behalf. It is admitted by the parties that no
proceedings under Section 10(6) of the Act, 1976 had ever taken place.
Thereafter the notice under Section 11 (8) dated 22.03.1997 was served
upon Chokhe, son of Gokul on 29.03.1997 and the petitioners vide the
letter dated 12.04.1997 had sought time to file objections to the notice
under Section 11 (8). The service report dated 19.03.1997 and the copy
of the objection dated 05.04.1997 have duly been brought on record. The
petitioners have denied the service of notice under Section 11 (8) and
the application seeking time to file objections.
25. As far as the revenue records are concerned, the petitioners claim
that their names continued to be recorded in the revenue records for a
9
WRIC No. - 23827 of 2010
substantial passage of time even after the enforcement of the Repeal Act,
1999. Although it is the stand of the respondent that the land in dispute
comprised in Gata No. 789 and Gata No. 773 was duly recorded in the
mutation register (R-6) in the name of the State as, “Competent
Authority, Urban Ceiling” at serial no. 26 on 09.12.1996. However,
neither of the parties from the records have been able to demonstrate as
to when the revenue entries were recorded in the name of the State in the
revenue records in respect of the land in dispute.
26. Be that as it may the respondents in the supplementary counter
affidavit dated 19.06.2023 in respect of recording the name of the State
Government in the revenue records have stated as under:
“ 3. That in the case of Ram Autar being writ petition no. 23827 of 2010 the
name of the State Government was recorded in the Revenue records
pertaining to the land in question, in the year 2018. In support thereto the
Khatoni fasli year 1426-1431 are being enclosed herewith and marked as
Annexure No. SCA-1 to this affidavit.
4. That the Khasra for the aforesaid land in question was also rectified. A
copy of the Khasra fasli year 1427 showing the name of urban ceiling duly
recorded over the land in question is being enclosed herewith and marked as
Annexure No. SCA-2 to this affidavit.”
27. Hence, as per own showing of the respondents, the revenue entries
were mutated in the name of the State in respect the land in dispute in
the year 2018, while the present writ petition was pending. Hence, in
view of the above admission on behalf of the respondents, it is beyond
doubt that the revenue entries continued in the name of the petitioners or
their predecessors for a substantial passage of time even after coming
into force of the Repeal Act, 1999.
28. As far as the question of possession is concerned, the respondents in
the site plan Sonakpur Awasiya Yojna have tried to demonstrate open
land and nala are existing over Gata No. 789 and school is shown to be
situated over Gata no. 773. The respondents in this regard have also
relied upon a report of the Advocate Commissioner filed in Writ C No.
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WRIC No. - 23827 of 2010
758850 of 2013 (Babu and others v. State of U.P. and others) on the
directions of this Court wherein a mention of Gata No. 773 and Gata No.
789 is also made. The report in respect of two gatas is reproduced herein
below:
773 The total area of plot No. 773 is 0.223 hectare and the surplus declared
area is 0.043 hectare. This plot is also covered with private abadi as shown
in Enclosure No.1 to this report.
789 The total area of plot no. 789 is 0.559 hectare and the whole land declared
as surplus. The 24 meter wide Moradabad Delhi bye-pass passes through
the said plot. The plot contains chambers of sewer line and high tension
line passes over it.
Thus as per own showing of the respondents a private abadi was situated
over gata no. 773 in December, 2014 when the inspection was carried
out and 24 meters wide Moradabad bypass was to pass through Gata No.
789 besides the chambers of sewer line and high tension lines were also
situated over the aforesaid gata.
29. In this regard a report dated 28.11.2022 prepared by Secretary,
respondent no. 3-authority is also relevant and has been relied upon by
the respondents and the same reads as under:
0-773-
“गाटा सं
0-773 0.3640 ,
गाटा सं का कुल रकबा राजस्व अभिलेखाों के अनुसार हैक्टे० है जसमें अर्बन सीलिंग
3642.30 ,
की वर्ग मी० अर्थात गाटे की सम्पूर्ण भूमि प्राधिकरण की कब्जा प्राप्त भूमि है जिसका
18.01.1990
कब्जा प्राधिकरण को दिनांक को हस्तान्तरित किया गया है। जिसमें कुछ भाग पर
,
प्राधिकरण द्वारा सोनकपुर आवासीय योजना के अन्तर्गत नाली सड़क आदि का निर्माण कराया गया
है तथा कुछ भाग पर अवैध रूप ने प्राइवेट आबादी बनी हुई है।
0-789-
गाटा सं
0-789 0.5590 ,
गाटा सं का कुल रकबा राजस्व अभिलेखों के अनुसार हैक्टे० है जिसमें अर्बन सीलिंग
5584.86 ,
की वर्ग मी० अर्थात गाटे की सम्पूर्ण भूमि प्राधिकरण की कब्जा प्राप्त भूमि है जिसका
18.01.1990
कब्जा प्राधिकरण को दिनांक को हस्तान्तरित किया गया है। जिस पर प्राधिकरण द्वारा
,
सोनकपुर आवासीय योजना के अन्तर्गत नियोजित करते हुए नाली सड़क आदि विकास कार्य कराये
गये है।”
Thus, as far as Gata No. 773 is concerned there was private abadi
existing over the said gata and on Gata 789 it is alleged that development
works in the shape of drains, roads, etc had been carried out.
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WRIC No. - 23827 of 2010
30. Interestingly, the respondent no.3 authority in its counter affidavit
apparently seems to admit the possession of the petitioners over Gata
No. 773 although it is alleged that the construction so raised is nothing
but a trespass. The relevant part of paragraph 10 of the counter affidavit
filed on behalf of respondent no.3 is reads as under:
“10. That accordingly it is not open to the original land holder or his
successor petitioners to claim any advantage of the provisions of the Urban
Land Ceiling (Repeal Act 1999) or claim a writ of mandamus from this
Hon'ble High Court against the respondents for not interfering with their
possession by challenging part of the proceedings of Ceiling Case No.
2770/3627 in as far as it relates to plot no. 773-A. It is further submitted that
some times after the conclusion of the aforesaid proceedings, the petitioners
appear to have encroached upon the aforesaid land by raising some
unauthorized construction without the knowledge of the respondent's
authorities and have now come up in the present writ petition to claim
advantage of the Repeal Act 1999. Thus on the date of the writ petition the
status of the petitioner is that of a rank
trespasser over the stretch land and hence the petitioners do not deserve
any sympathy from this Hon'ble Court and the above noted writ petition being
misconceived deserves to be dismissed.”
Under the circumstances, it is evident that construction has been raised
by the petitioner over the said plot, even though allegedly unauthorised.
31. Besides both the parties have also filed the photographs of the land
in dispute claiming that they are in possession of the land in dispute. We
are well aware of the fact that usually photographs should not be relied
upon as an evidence of possession of a particular party over the land,
however, in the present case both the parties have relied upon a similar
set of photographs in respect of Gata No. 789 and as such there can be
no controversy that the photographs filed by the respective parties
pertain to the same piece of land. The photographs of Gata No. 789
relied upon by the petitioners shows that there is a bridge in the
background and crop is standing over the vacant land. The respondents
on the other hand have filed the photographs of Gata no. 789 with the
supplementary counter affidavit dated 29.11.2022 sworn by the then
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WRIC No. - 23827 of 2010
Principal Secretary, Housing and Urban Planning Department,
Government of Uttar Pradesh wherein the same bridge is shown in the
background and the land is lying vacant with no crop standing over it,
the photograph is dated 24.11.2022. Besides there are no signs of any
development having taken place over the said piece of land or in the
vicinity thereof be it in the shape of drains, road, residential plots etc.
other than the electricity lines running over the same, which are also
existing in the photograph of Gata no. 789 relied upon by the petitioners.
32. In the photograph of Gata no. 773 relied upon by the respondents
filed with the above said supplementary counter affidavit dated
29.11.2022 shows that houses and shops/ abadi along with road are
existing over the said plot, the photograph is dated 24.11.2022. Thus, it
is apparent from the photograph of Gata No. 773 relied upon by the
respondents that a private abadi along with road exist over the said plot.
33. Before we advert to the law in respect of taking over of possession
by the State under the Act, 1976, and the effect of Repeal Act, 1999, we
would like to consider to another question raised by the petitioner
regarding the land in dispute being situated beyond the urban
agglomeration. In this regard the petitioner has relied upon the reports of
Naib Tehsildar dated 08.02.1979 and 10.05.1979 filed in two ceiling
cases as well as letter dated 06.04.1992 issued by the competent
authority besides the map of Nagar Palika, Moradabad prepared in the
year 1967 and the map of delimitation of Nagar Nigam, Moradabad of
the year 2017.
34. On the contrary the respondents state that none of the reports dated
08.02.1979 and 15.02.1979 of the Naib Tehsildar have been relied upon
by the Competent Authority while deciding the two ceiling cases.
Besides the respondent have also relied upon the gazette notification
dated 30.09.1978 to show that Village Sonakpur is within urban
agglomeration of district Moradabad. Moreover we are of the view that
the said pleas have been raised by the petitioner rather belatedly and
ought to have been raised at the relevant point of time during the
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WRIC No. - 23827 of 2010
proceedings under the Act,1976, moreover, the pleas so raised involve
disputed questions of fact which we do not need to decide in proceedings
under Article 226 of the Constitution of India.
35. As far as the contention of the respondents that the petitioners had
filed Writ Petition No. 62393 of 2013 (Gokul and others Vs. State of
U.P. and others) is concerned, the petitioners have refuted the same. The
respondents have also not brought the memo of the aforesaid writ
petition on record. Moreover, the records reveal that Gokul had passed
away shortly after the commencement of proceedings under the Act,
1976 and as such could not have filed a writ petition in the year, 2013.
Hence, the aforesaid contention of the respondents is of no consequence
as far as outcome of the present writ petition is concerned.
36. We now advert to the law laid down by the Apex Court in respect of
the transfer of possession to the State under the Act, 1976 and the effect
of the Repeal Act, on the proceedings so initiated. The Apex Court in the
case of State of U.P. v. Hariram, 2013 (4) SCC 280 has held as under:
“Peaceful Dispossession
34 Sub-section (5) of Section 10, for the first time, speaks of "possession"
which says that where any land is vested in the State Government under
sub-section (3) of Section 10, the competent authority may, by notice in
writing, order any person, who may be in possession of it to surrender or
transfer possession to the State Government or to any other person, duly
authorised by the State Government.
35. If de facto possession has already passed on to the State Government by
the two deeming provisions under sub-section (3) of Section 10, there is no
necessity of using the expression "where any land is vested" under sub-
section (5) of Section 10. Surrendering or transfer of possession under sub-
section (3) of Section 10 can be voluntary so that the person may get the
compensation as provided under Section 11 of the Act early. Once there is no
voluntary surrender or delivery of possession, necessarily the State
Government has to issue notice in writing under sub-section (5) of Section 10
to surrender or deliver possession. Sub-section (5) of Section 10 visualises a
14
WRIC No. - 23827 of 2010
situation of surrendering and delivering possession, peacefully while sub-
section (6) of Section 10 contemplates a situation of forceful dispossession.
Forceful dispossession
36. The Act provides for forceful dispossession but only when a person
refuses or fails to comply with an order under sub-section (5) of Section 10.
Sub-section (6) of Section 10 again speaks of "possession" which says, if
any person refuses or fails to comply with the order made under sub-section
(5) the competent authority may take possession of the vacant land to be
given to the State Government and for that purpose, force-as may be
necessary-can be used. Sub-section (6), therefore, contemplates a situation
of a person refusing or fails to comply with the order under sub-section (5), in
the event of which the competent authority may take possession by use of
force. Forcible dispossession of the land, therefore, is being resorted to only
in a situation which falls under sub-section (6) and not under sub-section (5)
of Section 10. Sub-sections (5) and (6), therefore, take care of both the
situations i.e. taking possession by giving notice, that is, "peaceful
dispossession" and on failure to surrender or give delivery of possession
under Section 10(5), then "forceful dispossession" under sub-section (6) of
Section 10.
37. The requirement of giving notice under sub-sections (5) and (6) of
Section 10 is mandatory. Though the word "may" has been used therein, the
word "may" in both the sub-sections has to be understood as "shall" because
a court charged with the task of enforcing the statute needs to decide the
consequences that the legislature intended to follow from failure to
implement the requirement. Effect of non-issue of notice under sub-
section(5) or sub-section (6) of Section 10 is that it might result in the
landholder being dispossessed without notice, therefore, the word "may" has
to be read as "shall".
42 The mere vesting of the land under sub-section (3) of Section 10 would
not confer any right on the State Government to have de facto possession of
the vacant land unless there has been a voluntary surrender of vacant land
before 18-3-1999. The State has to establish that there has been a voluntary
surrender of vacant land or surrender and delivery of peaceful possession
under sub-section (5) of Section 10 or forceful dispossession under sub-
section (6) of Section 10. On failure to establish any of those situations, the
landowner or holder can claim the benefit of Section 4 of the Repeal Act. The
15
WRIC No. - 23827 of 2010
State Government in this appeal could not establish any of those situations
and hence the High Court is right in holding that the respondent is entitled to
get the benefit of Section 4 of the Repeal Act.
43. We, therefore, find no infirmity in the judgment of the High Court and the
appeal is, accordingly, dismissed so also the other appeals. No documents
have been produced by the State to show that the respondents had been
dispossessed before coming into force of the Repeal Act and hence, the
respondents are entitled to get the benefit of Section 4 of the Repeal Act.
However, there will be no order as to costs.”
(emphasis added)
37. Further the Apex Court in the case of A.P. Electrical Equipment
Corporation v. Tehsildar and others, 2025 SCC Online SC 447 while
relying upon the law laid down in the case of Hari Ram (supra) has held
as under:
“20. Thus, by virtue of the provisions of Section 3 of the Repeal Act, 1999, if
possession of vacant land has been taken over on behalf of the State
Government before the coming into force of the Repeal Act, 1999, the repeal
of the Principal Act would not affect the vesting of such land under sub-
section (3) of Section 10 of Act, 1976. Hence, the issue as to whether actual
possession of land declared excess under the Act has been taken over or not
assumes great significance after the coming into force of the Repeal Act,
1999 inasmuch as if possession has not been taken over, the proceedings
would abate under Section 4 of the Repeal Act, 1999 and the ownership of
the land, if vested in the State Government under Section 10 (3) of the Act,
1976 would be required to be restored to the original land-holder subject to
repayment of any amount that has been paid by the State Government with
respect to such land
25. Thus, applying the principle of strict construction as explained in the
aforesaid two decisions, the authorities are required to act strictly in
accordance with the statutory provisions. Thus, when sub-section (5) of
Section 10 mandates giving notice of an order under the said sub-section to
the person in possession, the same is required to be complied with in its true
letter and spirit. Considering the nature of rights involved, mere issuance of
notice without service thereof, cannot be said to be due compliance with the
provisions of the statute. Besides, the provisions of subsection (6) of Section
16
WRIC No. - 23827 of 2010
10 can be resorted to only if the person fails to comply with an order under
sub-section (5) thereof, within a period of thirty days of service of notice.
Hence, possession cannot be taken over under Section 10(6) of the Act,
1976 unless a period of thirty days from the date of service of notice has
elapsed. In absence of service of notice under sub-section (5) of Section 10,
there will be no starting point for calculating the period of thirty days. In other
words, time will not start running, hence the question of taking over
possession under sub-section (6) of Section 10 of the Act, 1976 will not arise
at all. In this view of the matter, in the case on hand, it was not open to the
respondent authorities to resort to the provisions of sub-section (6) of Section
10 of the Act, 1976 without first strictly complying with the provisions of sub-
section (5) thereof. Hence, such action being in contravention of the statutory
provisions cannot be sustained and deserves to be struck down.
41 The propositions of law governing the issue of possession in context with
Sections 10(5) and 10(6) respectively of the Act, 1976 read with Section 3 of
the Repeal Act, 1999 may be summed up thus:
[1] The Repeal Act, 1999 clearly talks about the possession being taken
under Section 10(5) or Section 10(6) of the Act, 1976, as the case may be.
[2] It is a statutory obligation on the part of the competent authority or the
State to take possession strictly as permitted in law.
(3) In case the possession is purported to have been taken under Section
10(6) of the Act, 1976 the Court is still obliged to look into whether "taking of
such possession is valid or invalidated on any of the considerations in law.”
[4] The possession envisaged under Section 3 of the Repeal Act, 1999 is de
facto and not de jure only.
[5] The mere vesting of "land declared surplus" under the Act without
resuming "de facto possession" is of no consequence and the land holder is
entitled to the benefit of the Repeal Act, 1999.
[6] The requirement of giving notice under sub-sections (5) and (6) of Section
10 respectively is mandatory. Although the word "may" has been used
therein, yet the word "may" in both the sub-sections should be understood as
"shall" because a Court is obliged to decide the consequences that the
legislature intended to follow from the failure to implement the requirement.
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[7] The mere vesting of the land under sub-section (3) of Section 10 would
not confer any right on the State Government to have de facto possession of
the vacant land unless there has been a voluntary surrender of vacant land
before 18th March 1999.
[8] The State has to establish by cogent evidence on record that there has
been a voluntary surrender of vacant land or surrender land delivery of
peaceful possession under sub-section (5) of Section 10 or forceful
dispossession under sub-section (6) of Section 10.
53. Thus, it would all depend on the nature of the question of fact. In other
words, what is exactly, that the writ court needs to determine so as to arrive
at the right decision. If the only issue, that revolves around the entire debate
is one relating to actual taking over of the physical possession of the excess
land under the provisions of sub-sections (5) and (6) of Section 10 of the Act,
1976 respectively, then in such circumstances, the writ court has no other
option but to go into the factual aspects and take an appropriate decision in
that regard. The issue of possession, by itself, will not become a disputed
question of fact. If all that has been said by the State is to be accepted as a
gospel truth and nothing shown by the landowner is to be looked into on the
ground that a writ court cannot go into disputed questions of fact, then the
same may lead to a serious miscarriage of justice.
54 We are of the considered opinion that the issue as regards taking over of
the actual physical possession of the excess land in accordance with the
provisions of sub-sections (5) and (6) of Section 10 of the Act, 1976 could be
said to be a mixed question of law and fact and not just a question of fact.
Mixed question of law and fact refers to a question which depends on both
law and fact for its solution. In resolving a mixed question of law and fact, a
reviewing court must adjudicate the facts of the case and decide relevant
legal issues at the same time. Mixed questions of law and fact are defined
"as questions in which the historical facts are admitted or established, the
rule of law is resolved and the issue is whether the facts satisfy the statutory
standard, or to put it another way, whether the rule of law as applied to the
established facts is or is not violated[Bausch & Lomb v. Unites States C.I.T.
166, 169 (Ct. Int’I Trade 1997]”
(emphasis added)
18
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38. Recently the Apex Court in the case of Dalsukhbhai Bachubhai
Satasia and others v. State of Gujarat and others, 2026 SCC Online SC
25 while considering the provisions of the Act, 1976 and the Repeal Act,
1999 had held as under:
“18.1 We, therefore, see that the requirement of issuance of notice under
Section 10(5) is mandatory and must be issued to the person(s) actually in
possession of the concerned land. This is clear from the wording of the
statute ("order any person who may be in possession of it"), which are
Interpreted by this Court in Hari Ram. This Court opined that the importance
of delivering notice lay in avoiding a situation where a person is
"dispossessed" without notice which would be in violation of the principles of
natural justice, thereby clearly envisioning that the possessor must be served
with notice.
19.2 The delivery of notice to the person in possession was therefore
unequivocally held to be mandatory. Indeed, the emphasis was on the
service of notice on the possessor, as opposed to mere issuance of the
same. In the absence of such service of notice, any attempt at forced
dispossession was held to be contrary to the statute and hence illegal.
19.3. This Court reiterated the conclusion in Hari Ram, i.e., that if possession
has not been taken over by the State Government, then the proceedings
under the Act would abate under Section 4 of the Repealing Act. The "mere
vesting of the vacant land with the State Government by operation of law,
without actual possession, is not sufficient". This Court in AP Electrical
phrased the conclusion of Hari Ram in the following manner:
…………...
29....To put it in other words, the mere paper possession would not save the
situation for the State Government unless the State is able to establish by
cogent evidence that actual physical possession of the entire land was taken
over by evicting each and every person from the land. The onus is on the
State to establish that actual physical possession of the excess vacant land
was taken over before the repeal.”
22.4. Therefore, as per the provisions of Sections 10(3) and 10(5) of the ULC
Act, the subject land, despite having 'vested' (along with acquisition of title or
interests) in the State Government, was not in the possession of the
19
WRIC No. - 23827 of 2010
Government. Further, possession was not taken by any of the three possible
means, i.e., voluntary transfer by the appellants, issuance of notice under
Section 10(5) to the appellants followed by peaceful transfer or forceful
acquisition of possession under Section 10(6) of the ULC Act. The
possession of the land continues with the appellants herein till date.
22.5. Such a scenario is clearly one where the provision of abatement under
Section 4 of the Repealing Act applies. The proviso to Section 4 states that
the section would not apply to proceedings under Sections 11, 12, 13 and 14
of the ULC Act relating to land that has already been taken possession of by
the State Government. Therefore, the proviso has no applicability to the facts
at hand and the benefit of abatement under the section would apply
wholesale.
22.6 That the approach to be had with cases such as the present one is also
evident upon a reading of Sections 3 and 4 of the Repealing Act. Clearly, the
legislative intent is that in cases where lands were deemed to have been
vested but possession was not yet transferred as on date of enforcement of
the Repealing Act (such as the present case), the lands were to remain in
possession of the private parties. Section 3 (2) of the Repealing Act
prescribes the procedure to be followed in specific types of situations, I.e.,
where amounts paid by the State Government must be refunded. This is not
so in the present case. However, the underlying concepts are clear that
vesting and possession are distinct and that without the latter, the private
parties have a claim over continuing to be in possession. This is
subsequently further emphasised in Section 4 of the Repealing Act, as
explained earlier under which proceedings abate as a result.”
3 9. Now if we advert to the facts of the present case on the touchstone of
law laid down by the Apex Court, as discussed above, the requirement of
giving notice under Section 10 (5) and Section 10 (6) is mandatory.
Admittedly in the present case there has been no forceful dispossession
under Section 10 (6). As far as the notice under Section 10 (5) is
concerned, the respondents claim that the same was served upon Smt.
Leelavati, wife of land holder and the petitioners have denied the receipt
of the notice, however, the perusal of the notice, annexed as Annexure
No C.A-3 to the counter affidavit of respondent no.3- authority reveals
that it has not been received by the landholders or any other person on
20
WRIC No. - 23827 of 2010
their behalf. It is not the case of either of the parties that the possession
memo dated 27.08.1984 issued in pursuance to the notice under Section
10 (5) was served on the land holders although it has been endorsed by
two witnesses. Thus, the mandatory requirement of delivery of notice
under Section 10 (5) to the petitioners not not been complied with.
40. Although it is vehemently argued on behalf of the respondents that
the petitioners and their predecessors were well aware of the proceedings
under the Act, 1976 but had never objected to the same and reliance is
also placed upon the fact that the notice under Section 11 (8) dated
12.03.1997 was served upon the land holders and time was sought to file
objections. We are afraid, even if, the said contention is taken to be
correct, the same would be of no assistance to the respondents on two
counts; firstly the burden lay upon the respondents to prove that they had
taken possession of the land in dispute in accordance with the provisions
of the Act, 1976, which the respondents have failed to discharge for
reasons above, and secondly even after issuance of notice under Section
11 (8) there is nothing on record to demonstrate that payment of Sandeya
Dhanrashi/ compensation has been made to the petitioners. Hence, even
if the petitioners were aware of the proceedings under the Act, 1976 the
same would not absolve the State of its obligation to have taken the de
facto possession of the land in dispute in due accordance with the
provisions of the Act, 1976 and to prove the same in the present
proceedings.
41. We also cannot lose sight of the fact that the entries in the revenue
records were made in the name of the State admittedly sometime in the
year 2018 as per own showing of the respondents. We are also aware of
the fact that the mutation of entries in the revenue records do not create
or extinguish the title over the land nor it has any presumptive value on
the title and the revenue entries only enable the person in whose favour
mutation is made to pay the land revenue. But at the same time entries
in revenue records raise a presumption in regard to possession, but it is
beyond any doubt or dispute that such a presumption is rebuttable. The
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WRIC No. - 23827 of 2010
Apex Court in this regard in the case of State of Haryana & Anr. V. Amin
Lal (since deceased) through his L.Rs& Ors., decided on 19.11.2024 had
held as under:-
“8.2 The plaintiffs relied on jamabandi entries to establish their ownership.
The jamabadi for the year 1969-70 (Exhibit P1) records the name of Shri Amil
Lal as owner to the extent of half share. Revenue records are public
documents maintained by government officials in the regular course of duties
and carry a presumption of correctness under Section 35 of the Indian
Evidence Act, 1872. While it is true that revenue entries do not by themself
confer title, they are admissible as evidence of possession and can support a
claim of ownership when corroborated by other evidence.”
42. Further reliance is placed upon revenue entries being recorded in the
name of the State in the mutation register (R-6) on 09.02.1996 is also of
little consequence, as it is an outcome of internal papers work between
two offices of the State. Further the petitioners or any prudent person
would have come to know about the mutation of entries only when the
same were recorded in the revenue records and the same was admittedly
done in the year 2018.
43. Under the circumstances the revenue entries having continued in the
name of petitioners upto the year 2018, a presumption may be drawn that
the possession of the land in dispute continued with the petitioners and it
is for the respondents to rebut the presumption so made by placing
evidence that the possession is with the respondents.
44. In view of above the next question that follows to be decided is as to
whether the respondents have been able to prove their possession over
the land in dispute at the time of enforcement of the Repeal Act, 1999.
Admittedly the land in dispute is comprised in two plots being Khasra
No. 773 and Khasra No. 789.
45. As far as the Khasra No. 773 is concerned in the report of the
Advocate Commissioner relied upon by the respondents private abadi
existing over the same. In the report of the Secretary of the respondent
22
WRIC No. - 23827 of 2010
no.3 authority it is stated that the construction of drain, road, etc has
been carried out over the said plot and on a part thereof there is an illegal
private abadi. The respondent authority in its counter affidavit has also
admitted that the petitioner appears to have encroached upon the
aforesaid land by raising some unauthorised constructions. We failed to
understand as to how the petitioners would have raised constructions
over the said plot after the enforcement of Repeal Act, 1999 when the
same was in possession of the respondents-authority and a residential
scheme was planned over it. Thus, the contention of the respondents
holds little water, moreso when private abadi is situate over the said plot.
Even in the photographs of the aforesaid plot relied upon by the
respondents houses and shops along with road are shown to be existing
over the same. Under the circumstances, it cannot be said that the
respondents are in possession of the land comprised in Gata No. 773 and
it is beyond doubt that private abadi is existing over the same.
46. As far as the Gata No. 789 is concerned in the report of the Advocate
Commissioner relied upon by the respondents Moradabad Delhi Bypass,
passes over the said plot, besides chambers of sewer line and high
tension lines passing over the same. Further in the report of the Secretary
of the respondent authority construction of drain, road, etc has been
carried out over the said plot. Further in the photographs relied upon by
the respondents vacant plot of land is shown to be existing over the said
plot with high tension lines with no development work in the shape of
roads, drain, etc existing over the same and in its vicinity. Further in the
photographs relied upon by the petitioner of the very same plot, crops
are shown to be standing over the same. Hence, it is beyond doubt that
no development has taken place over the Gata No. 789 as alleged by the
respondents and agricultural activities are being carried out over the
same.
47. Thus for the reasons detailed above, the respondents have failed to
prove that they are in possession of the land in dispute, in fact the
23
WRIC No. - 23827 of 2010
respondents have failed to establish a prima facie case to demonstrate
that the are in possession of the land in dispute.
48. Another question raised before us and vehemently argued on behalf
of the respondents that the present writ petition is liable to be dismissed
solely on the ground of delay the petitioners having approached this
Court after a delay of about 30 years after the land was declared to be
vacant surplus and after about 25 years since the possession of the land
was taken over by the respondents.
49. Before we consider the factual aspects of the controversy in respect
to delay the respondents amongst others have heavily relied upon the law
laid down by the Apex Court in the case of State of Assam v. Bhaskar
Jyoti Sarma 2015 (5) SCC 321 in that regard. The law laid down by the
Apex Court in the said case came to be considered in the case of
Dalsukhbhai Bachubhai Satasia (supra) wherein the Apex Court had held
as under:-
“19.5. This Court in AP Electrical examined a prior decision of this Court in
State of Assam v. Bhaskar Jyoti Sarma, (2015) 5 SCC 321 ("Bhaskar Jyoti
Sarma"), since it appeared to "at the first blush create an impression that the
dictum as laid In Hari Ram has been diluted". It assessed the effect of
Bhaskar Jyoti Sarma on the dictum on Hari Ram as follows.
"33. We quote few relevant paras of the said judgment as under:
XXX
15. The High Court has held that the alleged dispossession was not
preceded by any notice under Section 10(5) of the Act. Assuming that to be
the case all that it would mean is that on 7th December, 1991 when the
erstwhile owner was dispossessed from the land in question, he could have
made a grievance based on Section 10(S) and even sought restoration of
possession to him no matter he would upon such restoration once again be
liable to be evicted under Sections 10(5) and 10(6) of the Act upon his failure
to deliver or surrender such possession. In reality therefore unless there was
something that was inherently wrong so as to affect the very process of
taking over such as the identity of the land or the boundaries thereof or any
24
WRIC No. - 23827 of 2010
other circumstance of a similar nature going to the root of the matter hence
requiring an adjudication, a person who had lost his land by reason of the
same being declared surplus under Section 10(3) would not consider it
worthwhile to agitate the violation of Section 10(5) for he can well understand
that even when this Court may uphold his contention that the procedure
ought to be followed as prescribed. It may still be not enough for him to retain
the land for the authorities could the very next day dispossess him from the
same by simply serving a notice under Section 10(5). It would, in that view,
be an academic exercise for any owner or person in possession to find fault
with his dispossession on the ground that no notice under Section 10(5) had
been served upon him.
16. The issue can be viewed from another angle also. Assuming that a
person in possession could make a grievance, no matter without much gain
in the ultimate analysis, the question is whether such grievance could be
made long after the alleged violation of Section 10 (5). If actual physical
th
possession was taken over from the erstwhile land owner on 7 December,
1991 as is alleged in the present case any grievance based on Section 10 (5)
ought to have been made within a reasonable time of such dispossession. If
the owner did not do so, forcible taking over of possession would acquire
legitimacy by sheer lapse of time. In any such situation ther owner or the
person in possession must be deemed to have waived his right uner Section
10 (5) of the Act. Any other view would, in our opinion, give a license to a
litigant to make a grievance not because he has suffered any real prejudice
that needs to be redressed but only because the fortuitous circumstances of
a Repeal Act tempted him to raise the issue regarding his dispossession
being in violation of the prescribed procedure.
17. Reliance was placed by the respondents upon the decision of this Court
in Hari Ram’s Case (supra). That decision does not, in our view, lend much
assistance to the respondents. We say so, because this Court was in Hari
Ram’s case (supra) considering whether the work ‘may’ appearing in Section
10 (5) gave to the competent authority the discretion to issue or not to issue
a notice before taking physical possession of the land in question under
Section 10 (6). The question whether breach of Section 10 (5) and possible
dispossession itself or render it non est in the eyes of law did not fall for
consideration in that case. In our opinion, what Section 10 (5) prescribed is
an ordinary and logical course of action that ought tobe followed before the
authorities decided to use force to dispossess the occupant under Section
25
WRIC No. - 23827 of 2010
10(6). In the case at hand if the appellant’s version regarding dispossession
of the erstwhiel owner in December 1991 is correct, the fact that such
dispossession was without a notice under Section 10(5) will be of no
consequence and would not vitiate or obliterate the act of taking possession
for the purposes of Section 3 of the Repeal Act. That is because Bhabadeb
Sharma-erstwhile owner had not make any grievance based on breach of
Section 10 (5) at any stage during his lifetime implying thereby that he had
waived hig right to do so.
(Emphasis supplied)
34. We have supplied emphasis on paras 15 and 17 of Bhaskar Jyoti
Sharma (supra) referred to above, for the purpose of highlighting that Hari
Ram (supra) has not been diluted in any manner. We are of the firm view that
Hari Ram (supra) holds the field even as on date. The statements of law in
Hari Ram (supra) are absolutely correct.
35. If two decisions of this Court appears inconsistent with each other, the
High Courts are not to follow one and overlook the other, but should try to
reconcile and respect them both and the only way to do so is to adopt the
wise suggestion of Lord Halsbury given in Quinn v. Leathem,[1901] A.C. 495
and reiterated by the Privy Council in Punjab Cooperative Bank Ltd. v.
Commr. of Income Tax, Lahore AIR 1940 PC 230:
“…. every judgment must be read as applicable to the particular facts proved
or assumed to be proved, since the generality of the expressions, which may
be found there, are not intended to be expositions of the whole law, but
governed or qualified by the particular facts of the case in which such
expressions are to be found.” and follow that decision whose facts appear
more in accord with those of the case at hand.”
20. We are inclined to agree with this view of this Court in AP Elettrical
regarding the effect of Bhaskar Jyoti Sarma on the dictum in Hari Ram. In the
former, de facto possession had actually been transferred to the State
Government. Albelt, this was done by force in contravention of the
requirement to mandatorily issue notice under Section 10(5) of the ULC Act.
In this regard, this Court held that if the objection regarding the non-
compliance with Section 10(5) is not made within a "reasonable time", then
the right to so object is "waived".
26
WRIC No. - 23827 of 2010
20.1. However, the facts of Hari Ram (and indeed, the present case) are
different insofar as de facto possession was not transferred, by force or
otherwise. Therefore, the question is not whether an actual transfer of
possession by force is vitiated by a delay in raising objections to the transfer.
Rather, the question is whether actual possession has been transferred at all,
if no process of transfer has been conducted under the various provisions of
Section 10 of the ULC Act. Therefore, the dictum in Hari Ram stands
undisputed by the judgment in Bhaskar Jyoti Sarma.
20.4. We find that this view is in accordance with the prior dictum of this
Court in Hari Ram, and agrees with the same. At this juncture, we find it
appropriate to briefly go through certain other pronouncements of this Court,
all of which are aligned on the necessity of serving notice on the possessor
under Section 10(5); the difference between vesting and possession’ the
difference between de jure and de facto possession and the effect of the
Repealing Act.”
50. Now we advert to the question of delay in view of observations made
above, for the reasons above we have already held that the notice under
Section 10 (5) and the possession memo was not served upon the
petitioners or his predecessors. Further even if the notice under Section
11 (8) was served upon the land holders on 22.03.1997, we cannot lose
sight of the fact that the Act, 1976 was repealed in the State on
18.03.1999 and till then or thereafter no payment of Sandeya Dhanrashi/
compensation was made to the petitioners. It has also been concluded
that the respondents have failed to prove their possession over the land
in dispute. Further as per the own showing of the respondents entries in
the revenue records were mutated in the name of the State in the year
2018.
51. Under the circumstances, there is no reason to disbelieve the
contention of the petitioner that it was only when the respondents had
started interfering in the possession of the petitioners that the petitioner
had approached the Competent Authority-respondent no.2 and had
subsequently filed the present writ petition in the year 2010.
27
WRIC No. - 23827 of 2010
52. Thus, in view of the above, it cannot be held that there has been
delay on the part of the petitioners in approaching this Court in view of
the fact that the petitioners continued to remain in possession of the land
in dispute prior to and after the enforcement of the Repeal Act, 1999 and
revenue entries also remained in the name of the petitioners and the
petitioners approached this Court shortly after their possession was
sought to be disturbed.
53. Further the respondents have placed reliance upon the judgment of
Coordinate Benches of this Court where the land in question was
similarly situated in village Sonakpur, District Moradabad and was
transferred by the State to Moradabad Development Authority after
culmination of proceedings under the Act, 1976. However, we find that
the facts of the cases so relied upon by the respondents are clearly
distinguishable.
54. In Writ C No. 1106 of 2010 (Kailash and another Vs. State of U.P.
and others) decided on 01.06.2012, the descendants of the original land
holder had sold their shares in the remaining land in question, which was
left out of the proceedings under the Act, 1976 and in the sale deed it
was clearly shown that ceiling land was situated adjoining the land so
transferred and the aforesaid land admittedly belonged to the petitioners
and was a subject matter of proceedings under the Act, 1976.
55. Similar was the case in Writ -C No. 20035 of 2013 (Polu & 2 tohers
V. State of U.p. & another) decided on 03.11.2016 and Writ-C No. 20578
of 2013 (Naresh & another v. State of U.P. & another) decided on
17.1.2016, whereto, the descendants of the original tenure holder had
transferred the remaining area of the land in question, left out of the
proceedings under the Act, 1976 to Moradabad Development Authority.
56. Further, in Writ-C No. 58850 of 2013 (Babu and others v. State of
U.P and others) decided on 21.12.2016, the remaining land of the
petitioners, left out of the proceedings under the Act, 1976, was acquired
by the Moradabad Development Authority under the provisions of Land
28
WRIC No. - 23827 of 2010
Acquisition Act, 1894. In the said circumstances, this court was of the
view that the possession of the land in question declared vacant surplus
under the Act, 1976 had already been transferred to the State.
57. However, in the present case, we find that the remaining land of the
petitioners left out of the proceedings under the Act, 1976 was neither
purchased nor acquired by the respondent no. 3 authority. Moreover in
the present case as duly admitted by the respondents the land in dispute
was recorded in the name of State sometime in the year 2018 during the
pendency of the present writ petition. Hence, we are of the view that the
facts and circumstances of the present case are clearly distinguishable
from those relied upon by the respondents and as such the respondents
would not be entitled to any benefit of the judgments so relied upon.
58. Hence, in view of above as far as the question of the respondent
having de facto possession of the land in dispute, the burden lay upon
the respondent to prove the same. However, we are afraid that the
respondents have utterly failed to discharge the burden. Besides the
respondents have also failed to establish that there has been a voluntary
surrender of vacant land, hence, under the circumstances, the petitioners
are very well within their rights to claim the benefit of Section 4 of the
Repeal Act, 1976.
59. The respondents have vehemently stressed upon the fact that the
present writ petition is liable to be dismissed solely on the ground of
delay in approaching this Court, however, we are of the view that the
question involved in the present case is whether actual possession has
been transferred at all to the respondents or not and if no process of
transfer has been conducted under the various provisions of Section 10
of the Act, 1976 and the respondents have also failed to establish their
possession over the land in dispute, then in such a case, the law relied
upon by us in the case of Hari Ram (supra), A.P. Electricial Equipment
Corporation (supra) and Dabukhbahi Bachubhai Sateria (supra) would
be applicable in the present case.
29
WRIC No. - 23827 of 2010
60. Thus, in view of the above the present writ petition is allowed.
61. No order as to costs.
(Sudhanshu Chauhan,J.) (Saral Srivastava,J.)
May 25, 2026
Arif/ Nadeem
Digitally signed by :-
NADEEM AHMAD
High Court of Judicature at Allahabad