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Tuesday, May 17, 2016

the expression “possession” used in clause (a) of sub-Section (2) of Section (3) of the Repeal Act meant actual physical possession and that there was nothing on record to indicate that actual physical possession was taken by the Competent Authority by High court is a wrong one = The Writ Petition preferred in the year 2005, therefore, had no stateable claim and the High Court was completely in error in accepting the submissions advanced on behalf of respondent Nos.1 and 2.=The record indicates that notification u/s 10(3) of the Act was published in the official gazette on 29.04.1986 and an appropriate notice u/s 10(5) of the Act was issued by the Competent Authority on 31.03.1993. These aspects of the matter are not disputed by respondent Nos.1 and 2 but in their submission, despite such notice u/s 10(5) of the Act, the possession was never taken over. The factum about taking over the possession finds clear mention in the possession certificate dated 20.08.1994. Further, the objections preferred by respondent Nos.1 and 2 were dismissed vide order dated 30.06.1995 which order also records the fact that possession of the land already stood taken over.While dismissing the objections, it was observed that the possession of the surplus land in question was already taken by the Tehsildar, Meerut on 20.08.1994. - after the vesting of the surplus land with the State Government u/s 10(5) of the Act, if any transfer of the property in question is effected, such transfer would be void ab initio and the transferee would not be entitled to challenge the alleged inaction on part of the State Government or the Competent Authority in not taking possession in compliance with the provisions u/s 10(5) of the Act.=In the aforesaid circumstances, the view taken by the High Court in the instant case is completely unsustainable.


                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.5102  of 2016
                (Arising from the SLP(Civil) No.7161 of 2011)


State of U.P.     and Ors.                                   ….Appellants


                                   Versus


Surendra Pratap and Ors.                             …. Respondents



                               J U D G M E N T


Uday U. Lalit, J.


Delay condoned.  Leave granted.



This appeal by special leave is directed  against  the  judgment  and  order
dated 12.11.2009 passed  by  the  High  Court  of  Judicature  at  Allahabad
allowing Writ Petition No.46843 of 2005 preferred by respondent Nos.1 and  2
herein.


After the enactment of the Urban Land (Ceiling  and  Regulation)  Act,  1976
(hereinafter referred to as the Act) imposing  ceiling  on  vacant  land  in
urban agglomerations, one Khairati who was Bhumidhar  of  Plot  Nos.222  and
144 measuring area 25232.13 Sq. Meters at  Village  Rali  Chauhan,  Pargana,
Tehsil & District Meerut, submitted a statement u/s 6 of the  Act.   On  the
basis of said statement, the Competent Authority after conducting  necessary
enquiry prepared a draft statement u/s 8(3) of the Act  which  was  sent  to
the land holder inviting objections, if any.  In due course,  the  Competent
Authority proceeded to pass an order u/s  8(4)  of  the  Act  on  23.05.1983
confirming the draft statement declaring 25232.13 sq.mtrs. of land  of  said
Khairati at Village – Rali Chauhan, Meerut as surplus land.  No  appeal  was
preferred against the order confirming the draft statement.


Thereafter, Notice u/s 9 of the Act along with final  statement  was  issued
by the Competent Authority which was received by the  legal  heirs  of  said
Khairati.  Later, notification u/s 10(1) of the Act  was  published  in  the
Gazette on 14.12.1985.  This was followed by notification u/s 10(3)  of  the
Act which was  published  in  the  Official  Gazette  on  29.04.1986,   upon
publication of which, the surplus vacant land stood vested  with  the  State
Government free from all encumbrances.


The Competent Authority vide notice dated 31.03.1993 u/s 10(5)  of  the  Act
directed the land holders to hand over possession of the  land  in  question
to the Collector within 30 days of the receipt of the notice.  Further,  the
Tehsildar, Meerut was also directed to take  possession  of  the  land.   It
appears that respondent No.1 who claimed to have  purchased  the  land  from
the heirs of said Khairati on  03.10.1986  i.e.  after  the  publication  of
notification  u/s  10(3)  of  the  Act,  preferred  objections  before   the
competent Authority on 07.05.1994 against the issuance of notice  u/s  10(5)
of the Act.


On 20.08.1994, possession of the surplus  vacant  land  was  taken  by  Land
Records Inspector, Meerut on behalf of the Tehsildar  from  respondent  No.2
herein through its  proprietor  namely  respondent  No.1.   Thereafter,  the
Competent  Authority  vide  its  order  dated   30.06.1995   dismissed   the
objections preferred by respondent No.1 against the issuance of  notice  u/s
10(5) of the Act.  While dismissing the objections,  it  was  observed  that
the possession of the surplus land in question  was  already  taken  by  the
Tehsildar, Meerut on 20.08.1994.


After enactment of the Urban Land (Ceiling and Regulation) Repeal Act,  1999
(hereinafter referred to as the Repeal Act),  the  respondent  Nos.1  and  2
preferred Writ Petition No.46843 of 2005 in the High Court contending inter-
alia that they were  still  in  possession  of  the  land  in  question  and
entitled to the benefit under the Repeal Act.  The High Court  accepted  the
contention and allowed their Writ Petition by its  order  dated  18.05.2010.
The High Court was of the view that  the  expression  “possession”  used  in
clause (a) of sub-Section (2) of Section (3) of the Repeal Act meant  actual
physical possession and that there was nothing on record  to  indicate  that
actual physical possession was taken by the Competent Authority.


We have heard Mr. Irshad Ahmad, learned Additional Advocate General for  the
State in support of the appeal and Mr. Aarohi Bhalla, learned  Advocate  for
respondent Nos.1 and 2.  The record indicates that  notification  u/s  10(3)
of the Act was published in  the  official  gazette  on  29.04.1986  and  an
appropriate notice u/s  10(5)  of  the  Act  was  issued  by  the  Competent
Authority on 31.03.1993.  These aspects of the matter are  not  disputed  by
respondent Nos.1 and 2 but in their  submission,  despite  such  notice  u/s
10(5) of the Act, the possession was never  taken  over.  The  factum  about
taking  over  the  possession  finds  clear  mention   in   the   possession
certificate  dated  20.08.1994.   Further,  the  objections   preferred   by
respondent Nos.1 and 2 were dismissed  vide  order  dated  30.06.1995  which
order also records the fact that possession of the land already stood  taken
over.  In the premises, all requisite actions  contemplated  under  the  Act
were taken in accordance with law well before the enactment  of  the  Repeal
Act and the surplus vacant land stood vested with the  State  Government  of
which the possession was also taken over.  The Writ  Petition  preferred  in
the year 2005, therefore, had no stateable claim  and  the  High  Court  was
completely in error in accepting  the  submissions  advanced  on  behalf  of
respondent Nos.1 and 2.


Moreover, in Civil Appeal Nos. 369-370 of 2016 (State of U.P.  and  Ors.  v.
Adarsh Seva Sahakari Ltd.) decided on 19.01.2016, this  Court  has  observed
that after the vesting of the surplus land with  the  State  Government  u/s
10(5) of the Act, if any transfer of the property in question  is  effected,
such transfer would be void ab  initio  and  the  transferee  would  not  be
entitled to challenge the alleged inaction on part of the  State  Government
or the Competent Authority in not taking possession in compliance  with  the
provisions u/s 10(5) of the Act.


In the aforesaid circumstances, the view taken by  the  High  Court  in  the
instant case  is  completely  unsustainable.   This  appeal  is,  therefore,
allowed and the Writ Petition  preferred  by  the  respondent  Nos.1  and  2
herein stands dismissed with costs.







…………………..CJI.
 (T. S. Thakur)



………………..……J.
(Uday Umesh Lalit)

New Delhi,
May 13, 2016


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