The Allahabad High Court while allowing the petition ordered that unless the actual possession is taken land will not vest in the State.
The Division Bench of Justice Salil Kumar Rai and Justice Arun Kumar Singh Deshwal passed this order while hearing a petition filed by Netra Pal Singh and Another.
The petition has been filed with the following prayers:-
“(i) Issue a writ, order or direction in the nature of mandamus declaring all the proceedings over the land in question measuring 2971.7566 sq meter, situated in Village Dhandhupura Tajganj, Tehsil Sadar, District Agra belonging to the petitioners as abated in view of the provisions of Urban Land (Ceiling and Regulation) Repeal Act, 1999.
(ii) issue a writ, order or direction in the nature of Mandamus commanding the respondents not to interfere in peaceful occupation and possession over the land in question of the petitioners measuring 2971.7566 sq meter, situated in Village Dhandhupura Tajganj, Tehsil Sadar, District Agra.”
The contention of the petitioners is that the ceiling proceeding under U.P Urban Land (Ceiling and Regulation) Repeal Act, 1999 was initiated against their father Chiddan Singh by order dated 4.7.1979 passed u/s 8(4) of the Act, 1999 declaring 2971.7566 square meters as surplus land in Village Dhandhupura Tajganj, Tehsil Sadar, District Agra. Thereafter, proceeding u/s 10(1) and 10(5) of the Act, 1999 were also initiated, but actual and physical possession was not taken.
Aggrieved by the order dated 4.7.1979 of the competent authority, the tenure holder Chiddan Singh preferred an appeal before the appellate authority bearing Misc Appeal and the same was allowed and order dated 4.7.1979 of the competent authority was set aside by order dated 16.10.1986 and the matter was remanded back to the competent authority with direction for serving fresh draft statement u/s 8(3) of the Act, 1999.
In pursuance of the order dated 16.10.1986, the competent authority again initiated proceedings against Chiddan Singh, declaring 2971.7566 square meters as surplus land. Thereafter notice u/s 10(1) was issued on 15.2.1993l, notice u/s 10(3) was issued on 6.7.1993 and thereafter notice u/s 10(5) was issued on 17.2.1994.
It is further contended by counsel for the petitioners that though notice u/s 10(5) in fresh ceiling proceeding was issued on 17.2.1994 but possession was not taken from the petitioners and till day they are in possession of the aforesaid land which was declared as surplus land.
It was also submitted that the father of the petitioners was the original tenure holder and he died on 15.4.2009.
On the other hand, the Standing Counsel stated that the possession of the surplus land was taken in the first round of ceiling proceedings on 29.4.1986. But this fact could not be disputed by the Standing Counsel that the possession was not taken after issuance of fresh notice u/s 10(5) dated 17.2.1994.
The Court observed that,
After hearing rival contentions of the parties and on perusal of the record, we are of the opinion that once the initial order of competent authority dated 4.7.1979 was set aside by the appellate court on 16.10.1986 then all consequential proceedings including the possession in first round of the proceeding lapsed and it is undisputed that in fresh round of ceiling proceeding, possession of the land in question was not taken despite the fact that notice u/s 10(5) was issued on 17.2.1994.
Therefore, there is no material on record which demonstrates that the State has taken peaceful possession or forceful possession u/s 10(6) of the Act, 1999 in fresh ceiling proceeding in pursuance of the order dated 10.2.1993 of the competent authority. A detailed procedure has been provided under the U.P Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Direction, 1983 for taking possession, but no such procedure, as prescribed in Direction, 1983, was followed.
The Supreme Court, in State of U.P vs Hari Ram, reported in (2013) 4 SCC 280, has clearly observed that unless the actual possession is taken, the land will not be vested in the State and on the enforcement of Act, 1999 proceeding under the Ceiling Act will abate and the tenure holder is entitled to retain the land which was declared surplus.
“In view of the above fact, we are of the considered view that the State has not brought on record any material to show that the actual possession was taken from the petitioner in pursuance of the fresh ceiling proceeding initiated on the basis of order dated 10.2.1993 of the competent authority, hence the ceiling proceeding regarding the land of the petitioners of total area 2971.7566 square meters in Village Dhandhupura Tajganj, Tehsil Sadar, District Agra has abated under the Act, 1999”, the Court further observed while allowing the petition.
The petitioners are entitled to retain the land and respondents are directed not to interfere in the possession of the above land, the Court ordered.