Citation Codes

Equivalent Citations

citation codes

Case Number

C.M.W.P No. 22242 of 2002

Judges

Amitava Lala
Sanjay Misra, JJ.

Acts

Sections 10(5) and 10(6) of the Urban Land (Ceiling and Regulation) Act, 1976. Such Act
Section 10(3) of the Urban Land (Ceiling and Regulation) Act, 1976,
Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976.
Regulation) Repeal Act, 1999. State of Uttar Pradesh
Sub-section (3) of Section 10 of the principal Act
Sections 11, 12, 13 and 14 of the principal Act
section (Section 3 of the said Repeal Act)
Sections 3 and 4 of the Repealing Act.
Section 4 of the Repeal Act, 1999.
Sub-section (2) under Section 3
Sub-section (1) of Section 20. (2)
Section 3 of the Repeal Act
Sub-section (3) of Section 10,
Sub-section (1) of Section 20
Section 3 of Repeal Act

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The respondent authority contended that the impugned land of the writ petitioners was surplus and had been taken by the authority under Sections 10(5) and 10(6) of the Urban Land (Ceiling and Regulation) Act, 1976. The Principal Act was later repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999, which the State of Uttar Pradesh adopted. The writ petition was filed after the Repealing Act came into force. The petitioners' principal contention was that the authority had not taken actual physical possession of the land, and therefore the State could not continue to retain possession after the Repealing Act became effective. The Court appointed a special officer to inspect the land and submit a sealed report, and the Court considered the statutory savings and abatement provisions of Sections 3 and 4 of the Repealing Act in light of the factual record.

Legal Issues Presented

Whether the words "actual physical possession" are contemplated by the prevailing law (i.e., whether possession required for the Repeal Act's savings is actual physical possession or some other form of possession).
Whether possession, as claimed by the State (including by issuing notice under Section 10(5) or by mutation/entries in revenue records), suffices to prevent restoration of the land to the original owners under the Repealing Act.

Arguments of the Parties

Petitioners' Arguments

The authority had not taken actual physical possession of the land; consequently, possession cannot be retained by the State after the Repealing Act became effective.
The notice under Section 10(5) of the Principal Act was received by one "Bachchan Lal," who, according to the petitioners, had no authority to receive such notice and could not affect the share of co-owners.
Mere mutation in revenue records does not confer title or demonstrate actual physical possession.

Respondents' Arguments

The land was surplus and had been taken under Sections 10(5) and 10(6) of the Principal Act, and the State relied on records to establish its claim to possession.
The land had been mutated in the State's name, which the respondents suggested supports their possession claim.
It was contended by the State's counsel that it is practically impossible for the State to keep actual physical possession of all lands previously vested under the Principal Act.
At the time of the special officer's inspection, the State asserted that no one was present on its behalf (a point the Court treated as a defensive explanation for the inspection report).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and Ors. (Supreme Court)	When nothing on record indicates that the State had taken possession over surplus land, proceedings under the Principal Act have to be abated under Section 4 of the Repeal Act.	The Court relied on this authority to support the proposition that absence of evidence of State possession points towards abatement and favors restoration under the Repeal Act.
Kishan Lal v. State of M.P. and Ors.	The proposition (as relied on by parties) that when both vesting and possession are made applicable the Principal Act applies; otherwise the Repeal Act applies; and that other provisions of Section 3 of the Repeal Act are relevant in deciding whether repeal affects vesting.	The Court noted the argument and the Supreme Court's observation that other provisions of Section 3 must be considered; the Court used this to emphasize the need to examine actual possession and related Section 3 savings.
State of U.P. through the Competent Authority & Anr. v. Hari Ram & Ors. (Civil Misc. Writ Petition No. 47369 of 2000) (Division Bench, unreported)	Possession of surplus land must be taken as contemplated under Sections 10(5) or 10(6) of the Principal Act; possession taken outside those processes is irrelevant; the possession envisaged under Section 3 of the Repeal Act is de facto and not purely de jure; illegal acts are not recognized in law.	The Court applied these principles to conclude that only possession lawfully taken under the Principal Act can justify denying restoration under the Repeal Act; possession unlawfully or extra‑legally claimed by the State would be ignored.
Earlier Division Bench (unreported) regarding mutation	Mere mutation of entry in revenue records in favour of the State/other persons is irrelevant/inconsequential for the applicability of Section 3 of the Repeal Act.	The Court relied on this position to hold that mutation alone does not establish actual physical possession for the purposes of the Repeal Act's savings.

Court's Reasoning and Analysis

The Court began by identifying the central interpretive question: whether the statutory term "possession" in the relevant provisions contemplates "actual physical possession" or some other species of possession. The Court undertook textual and contextual analysis with the guiding maxim noscitur a sociis for doubtful words.

The Court distinguished between "symbolic" (or de jure) possession that arises solely by virtue of statutory vesting and "actual physical" (de facto) possession supported by fact. It held that symbolic possession is a byproduct of the Principal Act and evaporates once the Principal Act is repealed; symbolic possession therefore cannot survive the repeal unless supported by a subsequent statute. Physical possession, by contrast, survives repeal and must be tested against available facts.

The Court read Sections 3 and 4 of the Repeal Act together with Sections 10(3), 10(5) and 10(6) of the Principal Act. It identified the sequence under the Principal Act: vesting by declaration (Section 10(3)), issuance of notice to surrender or deliver possession (Section 10(5)), and authority taking possession if the accused refuses or fails to surrender (Section 10(6)). The Court reasoned that only when both vesting and possession (taken in the manner contemplated by the Principal Act) are present can the Principal Act still be treated as operative for that land; otherwise the Repeal Act's consequences apply.

The Court observed that the Repeal Act addressed practical difficulties by permitting restoration where possession had not been taken or where amounts paid have been refunded. The proviso to Section 4 prevents abatement for proceedings under Sections 11–14 insofar as they relate to land whose possession had been taken and payment existed.

Applying these principles to the record, the Court appointed a special officer to inspect the land. The sealed report stated that no actual physical possession had been taken by the State. The State did not file exceptions to that report, but relied on record evidence of a notice under Section 10(5) said to have been received by "Bachchan Lal." The Court found that a notice received by that person, who according to petitioners lacked authority, could not establish possession of all co‑owners. The Court further held that mere mutation in revenue records cannot establish title or actual physical possession.

The Court also addressed the State's practical‑impossibility argument (that the State cannot physically hold all previously vested lands) and inferred that where vesting has evaporated and the land has not been used (beyond perhaps a signboard), the State cannot retain the land merely on the basis of prior statutory vesting when actual possession was not lawfully taken.

On the basis of the factual finding (special officer's report that there was no actual physical possession by the State), the statutory reading of the Repeal Act and Principal Act, and the cited authorities, the Court concluded that restoration to the petitioners was warranted.

Holding and Implications

Holding: The Court ALLOWED the writ petition. It declared that the land in question is free from any requisition or acquisition under the Urban Land (Ceiling and Regulation) Act, 1976, and held that the petitioners are entitled to lawful possession of the land.

Direct implications for the parties:

The writ petition stands disposed of in favour of the petitioners.
The petitioners are entitled to lawful possession of the disputed land.
No order was passed as to costs.

Broader implications: The opinion applies statutory interpretation of the Repeal Act's savings and abatement provisions to the facts and emphasizes that only lawfully taken physical possession under the Principal Act (Sections 10(5) / 10(6)) will prevent restoration under the Repeal Act. The opinion does not purport to create a novel legal principle beyond the application of the cited authorities and the statutes; no new precedent is explicitly stated to have been set.

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Kailash And Another v. State Of U.P And Others

1. The impugned land of the writ petitioners is, according to the respondent authority, surplus in nature and had been taken by the authority as per Sections 10(5) and 10(6) of the Urban Land (Ceiling and Regulation) Act, 1976. Such Act was repealed by virtue of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. State of Uttar Pradesh adopted the repealing Act of the Central Government. Therefore, the repealing Act is applicable in the State with full force.

2. The bone of contention of the petitioners' argument is that the authority had not taken the actual physical possession of the land in question, therefore, the possession cannot be kept by the State Authority after the repealing Act being enforced in the State. The writ petition was filed after the repealing Act came into force.

3. Therefore, the moot point is whether the words actual physical possession are contemplated under the prevailing law or not.

4. According to us, there is no such bearing under the law leaving aside the word possession. But we are constrained due to evaporation of earlier law. Therefore, the point has to be rationally thought for the necessity. Doubtful words are to be interpreted according to context following the maxim noscitur a sociis. If the word 'possession' in the existing law does not only include actual physical possession, what other type of possession can include? Obviously it is symbolic possession. But symbolic possession is byproduct of principal Act which will be effective at the time of vesting by applying deeming provision now has been repealed. Symbolic possession stands with the support of law wherein physical possession stands with the support of fact. When law evaporates, symbolic possession automatically evaporates. But physical possession remains to get it tested. Therefore, if subsequent Act supports existence of such possession, it has to be construed as physical possession but not symbolic possession. Court will only test with whom such actual physical possession lies. If the actual physical possession of the State is such that it is impossible to return back such possession, obviously no order can be passed in such case although law is little tilted in favour of the land holders. Legislature has made the provisions very clear under Sections 3 and 4 of the Repealing Act. The relevant sections of the Repealing Act are quoted hereunder :

3. Savings.--(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 by 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 judgment 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.

4. Abatement of legal proceedings.--All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, Tribunal or any authority shall abate :

Provided that this section shall not apply to the proceedings relating to Sections 11, 12, 13 and 14 of the principal Act insofar as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.

5. Composite reading of the aforesaid two sections gives indication of mind. Under Section 10(3) of the Urban Land (Ceiling and Regulation) Act, 1976, vesting shall be declared by notification etc. Under Section 10(5) notice will be issued to surrender or deliver the possession subject to such vesting. Under Section 10(6) if any person refuses or fails to comply with an order made under Sub-section (5), the authority may take possession. Therefore, when both vesting and possession are available then alone the original Act can be applicable. In other words such possession can be made only as an incident of vesting. Under the repealing Act practical difficulty has been considered by the Legislature and that practical difficulty is none other than the actual physical possession it occurs subject to vesting but even if law is lifted but possession cannot be given back physically. The last part of Sub-section (2) under Section 3 of the repealing Act is in respect of restoration of the land even when the amount can be paid back to the State Government. Payment of amount, if any, will come only when the possession has been taken. The Legislature has extended the scope even to the extent provided possession can be given back. The proviso to Section 4 of the repealing Act does not allow one to take advantage of abatement of legal proceedings when Section 11 onwards takes effect. Such situation is available only when land has been acquired and payment is existed. It was held by the Supreme Court in Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and Ors. , that when nothing on record to indicate that State had taken possession over the surplus land, the proceedings have to be abated under Section 4 of the Repeal Act, 1999. In totality enquiry and determination of actual physical possession and payment or refund money thereof are the necessary requirement for consideration under the Repeal Act. It has argued on the strength of Kishan Lal v. State of M. P. and Ors. , that when both vesting and possession are made applicable then the original Act will be made applicable but not the repealing Act, otherwise repealing Act will be applicable. Supreme Court held that there are some other provisions in the said section (Section 3 of the said Repeal Act) which are relevant in deciding the question as to whether the repeal shall affect such vesting. In an unreported judgment when State wanted a clarification in this regard in Civil Misc. Writ Petition No. 47369 of 2000, State of U.P. through the Competent Authority and Anr. v. Hari Ram and Ors., one of our Division Bench held as follows :

an illegal act is not recognized in law and has to be ignored unless specifically required under statute to be reckoned with. Secondly, possession of surplus land, on notice given under Section 10(5) of the Act is to be surrendered by the landowner voluntarily in pursuance to said notice. If the landowner does not surrender possession in pursuance to the aforesaid notice, 'the Act' contemplates taking possession by force and coercing the landowner under Section 10(6) of the Act. If possession is taken in an extraordinary manner (process not recognized in law), i.e., without resorting to the provisions contemplated under Section 10(5) or Section 10(6) of the Act, then possession will be irrelevant and of no consequence so far as the applicability of the Repeal Act is concerned. The Repeal Act shall have no effect on the Principal Act if possession of surplus land was not taken as contemplated in the Principal Act. Repeal Act, clearly talks possession being taken under Section 10(5) or 10(6) of the Act. It is a statutory obligation on the Competent Authority or State to take possession as permitted in law. It is to be appreciated that in case possession is purported to be taken under Section 10(6) of the Act, still Court is required to examine whether 'taking of such possession' is valid or invalidated on any of the considerations in law. If Court finds that one or more grounds exist which show that the process of possession, though claimed under Section 10(5) or 10(6) of the Act is unlawful or vitiated in law, then such possession will have no recognition in law and it will have to be ignored and treated as of no legal consequence. The possession envisaged under Section 3 of the Repeal Act is de facto and not de jure only.

6. Even thereafter we wanted to verify the truth of actual physical possession and appointed a member of the bar as special officer to visit the spot and place a report before the Court under sealed cover. Such report categorically speaks that no actual physical possession has been taken by the State. A fake defence has been taken by the State that at the time of inspection no one was present on behalf of the State. But we find from the earlier order of the Court that in presence of all the parties when the order was passed, it was made clear that no further notice will be given but all will be present at the time of making inspection of the spot by the Special Officer. Under the order dated 18th July, 2005, date and time were fixed by this Court. After opening the sealed cover and going through the report we have directed to circulate the report to give further opportunity to the parties to take appropriate step including exception to the report but State has not made any application taking exception to the report. They have relied upon their own record to establish the cause under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976. The law under Section 10(5) of the Act is crystal clear that notice in writing is to be given to surrender or deliver the possession and if any body refuses or fails to comply, the authority may take possession of the vacant land under Section 10(6) of the Act. From the record we find that only a notice under Sub-section (5) was received by one "Bachchan Lal". According to the petitioners he has no authority to receive the notice. Even if a co-sharer cannot affect the right of the others in receiving such notice. In any event notice under the principal Act upon one "Bachchan Lal" cannot help the cause of the respondents at present.

7. The respondents further wanted to say that the land has been mutated in their name, therefore, the same cannot be said to be land of the petitioners. We are all aware that mutation cannot give the title. Therefore, mere mutation cannot help the State for saying that the land is in their actual physical possession. Even the Division Bench of our High Court in the earlier unreported judgment held as follows :

Mere 'mutation' of entry in favour of State/other persons in revenue records, is irrelevant/ inconsequential so far as the applicability of Section 3 of Repeal Act is concerned.

8. Therefore, such point is also tested.

9. Learned standing counsel lastly contended that it is impossible for the State to keep actual physical possession of all the lands in question, which were previously vested by virtue of the surplus land under the Principal Act. The answer is hidden in such submission. The obvious inference is that when vesting of land is lifted by the evaporation of law and the land under vesting has not been utilised for any purpose save and except putting sign board, if any, to show that it was earlier vested under the Principal Act, cannot be held by the State.

10. Hence, as per the interpretation of this Court in this matter as well as in the earlier occasion and having discussion on the similar point by another Division Bench of this Court as also by the Supreme Court either expressly or impliedly, we do not find any other reason other than to allow the writ petition safely.

11. Therefore, we declare that the land in question is free from any requisition or acquisition under the Ceiling Act, as aforesaid, and the petitioners are entitled to have lawful possession of the land in question.

12. Thus, the writ petition stands disposed of.

13. However, no order is passed as to costs.

Kailash And Another v. State Of U.P And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kailash And Another v. State Of U.P And Others

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